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NORTH CAROLINA 

REGISTER 



RECEIVED 
JUL 1 9 1999 

KATHRINE R. EVERETT 
LAW LIBRARY 



VOLUME 14 • ISSUE 2 • Pages 72 - 122 



July 15, 1999 



IN THIS ISSUE 

Executive Orders 

ENR - Coastal Management 

ENR - Environmental Management 

Voting Rights Letters 

Chiropractic Examiners, Board of 

Environment and Natural Resources 

Health and Human Services 

Housing Finance Agency 

Insurance 

Labor 

Nursing, Board of 

Revenue 

Transportation 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consuk with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. 

Office of Adminislralivc Hearings 

Rules Division 

Capeharl-Crocker House (9 1 9) 733-2678 

424 Norlh Blounl Street (919) 733-3462 FAX 

Raleigh, North Carolina 2760 1 -28 1 7 



eontact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



mmasich@oah. state. nc. us 
rcreech@oah. state. nc. us 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

116 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state.nc.us 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact; Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)733-2721 
(919) 733-9415 FAX 



Le gislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 

Raleigh, North Carolina 276 11 (9 1 9) 7 1 5-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys @ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 2 
Pages 72- 122 



July 15. 1999 



This issue contains documents officially filed 
throuiih June 23. 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh. NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III. Director 

Camille Winston. Deputy Director 

Molly Masich. Director of APA Services 

Ruby Creech. Publications Coordinator 

Jean Shirle\. Editorial Assistant 

Linda Dupree. Editorial Assistant 

Jessica Flowers. Editorial Assistant 



IN THIS ISSUE 

I. EXECUTIVE ORDERS 

Executive Order 153 72 

II. IN ADDITION 

ENR - Coastal Management 74 

ENR - Environmental Management 73 

Voting Rights Letters 75-76 

m. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Wildlife Resources Commission 79 

Insurance 

Life and Health Division 78 

Special Services Division 78 

Labor 

Occupational Safety & Health 78-79 

IV. PROPOSED RULES 

Environment and Natural Resources 

Environmental Management 80 

Health and Human Services 

Health Services 80-82 

Independent Agencies 

Housing Finance Agency 82-83 

Licensing Boards 

Nursing, Board of 82 

V. APPROVED RULES 84-100 

Environment and Natural Resources 

Environmental Health 

Wildlife Resources 
Licensing Boards 

Chiropractic Examiners, Board of 
Revenue 

Individual Income Tax 
Transportation 

Highways. Division of 

VI. RULES REVIEW COMMISSION 101 107 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions I OS - 109 

Text of Selected Decisions 

96 OSF 2044 (Correction) 77 

98EHR 1315 1 10- 114 

99DOA0102 I 15- 122 

VIII. CUMULATIVE INDEX I 56 



Narili CiiniliikiHef^isit'rii published seini-nionlhly torSIV.'i pei year by the Office of Adininisu alive Heanngs. 424 North Blount Street. Raleigh. NC 
2760 1 ( ISSN 1.^200604) to mail al Penodicals Rates is paid at Raleigh. NC. POSTMASTER; Send Address changes to the Norlh Ctiralmci Re, (,'),«<■/■. 
PO Drawer 27447. Raleieh. NC 27611-7447 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


-) 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


1?A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


->1 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


22 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


2? 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Velerinarv Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 









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EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 153 
PERSIAN GULF WAR MEMORIAL COMMISSION 

IIBv the power vested in me as Governor by the Constitution and 
av\'s of North Carolina, IT LS ORDERED; 



Seetion 



Establishment and Membership 



There is hereby established the Persian Gulf War Memorial 
Tommission (the Commission) which shall be the successor entity 

the Persian Gulf War Memorial Commission created by 
Executive Order Number 9 1 . The Commission shall be composed 
if the following members: 

A. Two ( 2 ) individuals appointed by the Governor upon the 
recommendation of the Speaker of the North Carolina 
House of Representatives; 

B. Two ( 2 ) individuals appointed by the Governor upon the 
recommendation of the President Pro Tempore of the 
North Carolina Senate; and. 

C. Five (5) indi\iduals appointed by the Governor, 
including one representative of the North Carolina 
Desert Storm Memorial Foundation. 
In addition to those identified above, the following shall 
serve as non-\oting ex officio members of the 
Commission: 

D. Members of the Veterans" Affairs Commission 
Advisory Committee; 

E. One (1) representative of the North Carolina 
Department of Cultural Resources, appointed by the 

■^ Governor; 

"f. One ( 1 ) representative of the North Carolina Capital 

Planning Commission, appointed by the Governor; and, 
G. One ( 1 ) representative of the Division of Veterans 
Affairs of the North Carolina Department of 
Administration, appointed by the Governor. 
Those individuals who were the last serving members of the 
Persian Gulf War Memorial Commission under Executive Order 
Number 91 shall serve on the Commission created hereby, in the 
positions identified above. Members shall serve at the will of the 
Governorand until this Executive Order terminates. The Governor 
shall appoint a Chair from among the voting members. The 
Commission shall meet at the call of the Chair. 

Section 2. Purpose 

A. The Commission shall cause to be created on the 
Halifax Street Mall, located and designed in a manner 
which meets the approval of the North Carolina 
Historical Commission and the North Carolina Capital 
Planning Commission, a monument to those who served 
in the Persian Gulf War. 

B, Subject to the availability of funds to the Commission, 
any contracts necessary to locate, design, construct and 
erect the monument may be entered into on behalf of the 
State by the Division of Veterans Affairs of the North 

1 Carolina Department of Administration in the same 
' manner as State contracts generally. No such contract 

shall pledge the full faith and credit of the State. The 
Commission shall ha\e final approval of the design of 



the nK)nument. 



Section 3. 



Administration 



Administrative support for the Commission shall be provided by 
the Division of Veterans Affairs of the North Carolina Department 
of Administration. The Division shall establish a Persian Gulf 
War Memorial Trust Fund for the design, construction and erection 
of the memorial. Commission members may be paid necessary 
travel and subsistence allowance, subject to the availability of 
funds, in accordance with State law and procedure. 

Section 4. Effective Date of this Order and Rescission of 
Prior Orders 

This order is effective immediately and shall remain in effect 
until a Persian Gulf War Memorial is erected and all purposes of 
this order are fully satisfied. 

Executive Order Number 91 and all other executive orders 
primarily involving the Persian Gulf War Memorial Commission 
are hereby rescinded. 

All files, records, and related documentation of the Persian Gulf 
War Memorial Commission under Executive Order Number 91 
shall be transferred to the successor Commission created by this 
order. 

Done in the Capital City of Raleigh, North Carolina, this the 
28th day of May. 1999, 



14:2 



NORTH CAROLINA REGISTER 



July 15, 1999 



72 



IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of 
Rules for publication. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND WETLAND STANDARDS 

Informational Item 

The following statements pertain to the public hearing that was held on May 1 0, 1 999. for the proposed reclassification of the Green River 
in Henderson County (Broad River Basin) 15A NCAC 2B .0306 to include the Class B (Primary Recreation) and HQW (High Quality 
Waters) classification. Therule text was published in the April 15. 1999, NC Register (Vol. L^;20)pp. 17.31-17.32. The Hearing Officer, 
Larry Coble, has agreed to extend the period of time allowed to receive comments for an additional 60-day period. The original hearing 
record was to remain open for 30 days until June 10. 1999. The extended hearing record will remain open until August 10, 1999. 
Comments may be submitted to Boyd DeVane, DWQ-Planning Branch, PO Box 29335, 5 1 2 Salisbury Street, Raleigh, NC 27626-0535, 
or telephone (919) 733-5083 ext. 559. 



Editor's Notice 

The Environmental Management Commission has extended the comment period for the rules cited within 15A NCAC 2E. published ii 
the 1 3 NCR 24, Page 1 998. The comment period has been extended because the Commission found that 1 5A NCAC 2E .0502 (propose' 
for adoption) will have a significant economic impact. Also, please note the change in the agency's mailing address. 



I 



Comment Procedures as follows: The purpose of this announcement is to encourage those interested in this proposal to provide written 



comments. It is very important that all interested and pcUential affected parties make their views known to the Environmental Management 



Commission whether in favor or opposed to any and all provisions ol' the proposal being noticed. The public comment period ends Augu.st 



31, 1999. Written comments, data, or other information relevant to this proposal may be submitted l(,i: Nal Wilson, DENR/Division of 



Water Resources, 161 1 Mail Service Center. Raleigh. NC 27699-161 1. Tel. (919) 715-5445. 



i 



73 NORTH CAROLINA REGISTER July 15, 1999 14:02 



IN ADDITION 



I 



TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

CHAPTER 7 - COASTAL MANAGEMENT 

CRC PUBLIC HEARINGS - MORNING SERIES 



In addition to the public hearings previously published in the NC Register, these additional hearing dates have been 
added for the following rules: ISA NCAC 7H .0201, .0203, .0209, .1301, .1601, .1901, .2301; 7K .0203 and .0209. The proposed 
rules will provide additional protection to Estuarine and Public Trust resources by amending the existing Estuarine Shoreline 
Area of Environmental Concern rules and extending AEC shoreline protection rules to shorelines adjacent to public trust waters. 
The rules were published in the June 1, 1999, NC Register ( 13:23) pp. 1937-1942. The comment period has been extended until 
September 6, 1999. Comments may be submitted to Charles Jones, Assistant Director, Division of Coastal Management, 151-B 
Hwy 24, Morehead City, NC 2857(), (252) 808-2808. 

Wednesday, July 21, 1999, 10:00 a.m. 

Pasquotank County: K.E. White Center, 1 840 Weeksville Road, Elizabeth City State University, Elizabeth City. NC 



Monday, August 2, 1999, 10:00 a.m. 

Bertie County : Bertie County Superior Courthouse, Courtroom 2, 104 Dundee Street, Windsor, NC 



Camden County : Camden County High School. 103 US 158 West. Camden. NC 



Craven County : Craven County Chamher of Commerce, 3 1 6 S. Front Street, New Bern, NC 
Pender County : Pender County Courthouse, Courtroom 2, 2""' floor, 100 Wright Street. Burgaw. NC 



Tuesday, August 3, 1999, 10:00 a.m. 

Gates County : Gales County Extension Auditorium, 1 12 Court Street, Gatesville. NC 



Washington County : County Courthouse, County Commissioners Room, 1 20 Adams Street. Plymouth, NC 
Pamlico County : Pamlico Courthouse Annex. 202 Main Street, Bayhoro. NC 
I ^Jew Hanover County : DENR Regional Office. 127 Cardinal Drive Extension. Wilmington. NC 

Wednesday, August 4, 1999, 10:00 a.m. 

Perquimans County : Perquimans Courthouse Annex Building. 1 10 North Church Street. Hertford. NC 
Tyrrell County : County Finance Building. Conference Room, 108 South Water Street, Columbia, NC 
Carteret County : Carteret Community College Auditorium. 3505 Arendell, Morehead City, NC 
Brunswick County : Brunswick County Government Center. Commissioners Chambers, Bolivia. NC 

Thursday, August 5, 1999, 10:00 a.m. 

Currituck County : Old Courthouse, 153 Courthouse Road. Barko. NC 

Hyde County : Hyde County Courthouse. 20 Oyster Creek Road, Swan Quarter, NC 

Beaufort County : Beaufort County District Courthouse, Room 218, 112 West 2"'' Street, Washington, NC 

Onslow County : Onslow County Library. Conference Room, 58 Doris Avenue East. Jacksonville. NC 

Friday, August 6, 1999, 10:00 a.m. 

Dare County : Nags Head Board Room. 5401 South Croatan Highway. Nags Head. NC 

Hertford County : County Commissioners Room. Office Bldg. #1, 704 North King Street, Winton, NC 27986 

Chowan County : Chov\an County Courthouse, Commissioners Room, 2"'' Floor, Edenton, NC 



14:2 NORTH CAROLINA REGISTER July 75, 1999 74 



IN ADDITION 



EJ:GS:KIF:cly 
DJ 166-012-3 
99-0183 
99-0452 
99-0568 



U.S. Department t)f Justice 
Civil Rights Division 



Voting Section 

PO. Box 66128 

Washington. DC. 20035-6 J 28 



March 19, 1999 



Linda A. Miles, Esq. 
City Attorney 
P.O. Box 3136 

Greensboro. North Carolina 27402-3126 



♦ 



Dear Ms. Miles: 

This refers to three annexations (Ordinance Nos. 99-2. 99-1 1, and 99-17) and their designation to districts of the City of 
Greensboro in Guilford County. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act. 42 
U.S.C. 1973c. We received your submissions on January 27, February 19, and March 2, 1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would 
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 



Sincerely, 



Elizabeth Johnson 
Chief, Voting Section 



75 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:GS:TGL:emr 
DJ 166-012-.^ 

99-1287 Voting Section 

P.O. Box 66128 

Wa.slwigton. D.C. 20035-6128 



Susan K. Nichols. Esq. 

Special Deputy Attorney General 

P.O. Box 629 

Raleigh. North Carolina 27602-0629 



June 14. 1999 



)ear Ms. Nichols: 

This refers to Session Law 1999-31. which changes the campaign finance law in such areas as definitions, campaign 
contributions and expenditures, and reporting, for the State of North Carolina, submitted to the Attorney General pursuant to Section 5 
of the Voting Rights Act. 42 U.S. C. 197.3c. We received your submission on May 7. 1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the .Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
In addition, as authorized by Section 5. we reserve the right to reexamine these submissions if additional information that would 
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.41 and 51.4.3). 

Sincerely, 

Elizabeth Johnson 
Chief. Voting Section 



14:2 NORTH CAROLINA REGISTER July 15, 1999 76 



IN ADDITION 



Editor's Note 

An error was made in publishing David W. Robertson v. Nortti Carolina Department of Transportation, 96 OSP 2044, 
appearing on page 2071 in Volume 13, Issue 24 of the North Carolina Register. The presiding administrative law Judge issued a Final 
Decision in the aforementioned case. However, the published decision is captioned as a Recommended Decision, which is incorrect. 
Please be advised of this correction. 



♦1 



« 



77 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



RULE-MAKING PROCEEDINGS 



I 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The 
agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the 
proposed text of a rule. Publication of a temporary rule sen-es as a Notice of Rule-making Proceedings and can be 
found in the Register under the section heading of Temporaiy Rules. A Rule-making Agenda published by an agency 
senes as Rule-making Proceedings and can be found in the Register under the section heading of Rule-making 
Agendas. Statutory reference: G.S. I50B-2I.2. 



TITLE 11 - DEPARTMENT OF INSURANCE 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

CHAPTER 13 - SPECIAL SERVICES DIVISION 

-\ jittice of Rule-making Proceedings is hereby given b\ the 
1 V North Carolina Department of Insurance in accordance with 
G.S. 1508-21.2. The agency shall subsequently publish in the 
Reijister the te.xt of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: // 

NCAC 12 .1702: 13 .0514. .0518. Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 58-2-40: 58-15-30: 58- 
58-42: 58-71-5; 58-71-7 1(f): 85-2(a) 

'statement of the Subject Matter: Statute repealed that 
authorized Conunissioner to require bond from viatical 
settlement providers (II NCAC 12 .1702): statutes rewritten on 
collateral securin accepted by bail bondsman and continuing 
education requirements for bail bondsmen (11 NCAC 13 .0514. 
.0518). 

Reason for Proposed Action: These rules are being corrected 
to reflect changes made in statutes. 

Comment Procedures: Written comments should be sent to 
Ellen K. Sprenkel. NC Department of hisurance. PO Box 26387, 
Raleigh. NC 2761 1. 



TITLE 13 - DEPARTMENT OF LABOR 

CHAPTER 7 - OFFICE OF OCCUPATIONAL SAFETY 
AND HEALTH 

SUBCHAPTER 7A - GENERAL RULES AND 
OPERATIONAL PROCEDURES 

SUBCHAPTER 7F - STANDARDS 



tice of Rule-making Proceedings is hereby given by the 
North Carolina Department of Labor - Occupational Safety 



& Health Di\ision in accordance with G.S. 150B-2I.2. The 
agency shall subsequently publish in the Rci^ister the te.xt of the 
rule(s) it proposes to adopt as a result of this notice of rule- 
making proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 13 

NCAC 7 A .0401: 7 F .0101. .0201. .0410. Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 95-4: 95-131: 95-133 

Statement of the Subject Matter: The Division of 
Occupational Safet}- and Heidtli (OSHNC) is preparing to: 
submit amendments which repeal the Carolina STAR program 
rules so that an expanded program can be implemented through 
operatioiuil procedures: amend general industry and 
construction rules on ladders to include fiberglass ladders; 
propose construction rules for overhand bricklaying: propose 
general industn- rules on underhung hoists: and propose rules 
for safe erection of communications towers. 

Reason for Proposed Action: 

Carolina STAR : The Carolina STAR Program rules will be 
repealed and the program will he expanded as part of the 
OSHNC operational procedures. 

Fiherslass Ladders: Fiberglass ladders are not covered in 29 
CFR 1910.25 and 1910.26 or in 29 CFR 1926.1053 adopted 
verbatim by the N.C Department of Labor's Occupational 
Safet\' & Health Division. Though not in wide u.fe at the time the 
standards were adopted, fdierglass ladders are now used 
throughout general industry and construction. North Carolina 's 
general industry and construction standards are being amended 
to include fiberglass ladders in order to help industries fully 
understand their responsibilities in regard to the safe use of 
ladders. 

Underhuns Hoists: Lhulerhung hoists are not covered in the 
federal Occupationid Safety and Health Standards for General 
Industry adopted verbatim by the N.C. Department of Labor's 
Occupational Safety & Health Division lhulerhung hoists are 
however, addressed in the staiulards of the American National 
Standards Institute (ANSI I. North Carolina 's general industiy 
standards are being amended in order to help industries better 
understand their responsibilities regarding the safe use of 
underhung hoists. 

Overhand Bricklaying: Overhand hricklaybig is not specifically 
addressed in the federal Occupational Safety and Health 
Standards for the Construction Industry adopted verbatim by the 
N.C. Department of Labor's Occupational Safety and Health 



14:2 



NORTH CAROLINA REGISTER 



Julv 15, 1999 



78 



RULE-MAKING PROCEEDINGS 



Division. North Carolina's construction industry standards are 
being amended to clarify- the personal protective equipment 
(PRE) requirements {fall protection) for workers involved in 
overhand bricklaying who are not working from a scaffold. 
Communications Towers: Communication tower erection is not 
specifically addressed in the federal Occupational Safety and 
Health Standards for the Construction Industry adopted 
verbatim by the N.C Department of Labor's Occupational 
Safety and Health Division. Changes in technology and 
equipment in recent years have brought about a significant 
increase in the construction of communications towers. Injuries 
involving falls from these towers are serious if not fatal. North 
Carolina's construction industry standards are being amended 
to clarify employers ' responsibilities in regard to matters such 
as. hut not limited to. personal protective equipment (PPE) for 
workers during the construction of commuincations towers. 

Comment Procedures: The purpose of this announcement is to 
encourage all interested and potentially affected persons or 
parties to make known their views regarding the proposed 
rulemakings. Written comments, data, or other information 
relevant to this proposal must be submitted to Ann Wall, Legal 
Specialist. Department of Labor, Legal Affairs Division. 4 West 
Edenton Street. Raleigh. NC 27601-1092. Fa.x transmittals may 
be directed to (919) 715-5629. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT AND 
NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND WATER 
SAFETY 



SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

ly TOtice of Rule-making Proceedings is hereby given by the 
ly North Carolina Wildlife Resources Commission in 
accordance with G.S. I50B-2L2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: I5A 

NCAC lOF .0303. .0333. .0353. .0354. Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-making: OS. 75A-3. 75A-15 

Statement of the Subject Matter: No Wake Zones 

Reason for Proposed Action: The local governmental unit with 
territorial jurisdiction initiated the no-wake zones pursuant to 
G.S. 75A-I5 to protect public safety in the area by restricting 
vessel speed. The Wildlife Resources Commission may adopt 
this Rule as a Temporary Rule pursuant to G.S. 150B-21.1lal ) 
following this abbreviated notice. 



Comment Procedures: The record will be open for receipt of 
written comments until the Notice of Text is published in the NC .^m 
Register. Such written comments must be delivered or mailed tM V 
the North Carolina Wildlife Resources Commission, 512 N. 
Salislnuy Street. Raleigh, NC 27604-1 188. 



I 



79 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
w^Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
ur publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory 
reference: G.S. 150B-2I.2. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT AND 
NATURAL RESOURCES 



"Notice is hereby given in accordance with G.S. 150B-21.2 that 
he Environmental Management Commission intends to amend 
he rule cited as ISA NCAC 2H .0806. Notice of Rule-making 
'Proceedings was published in the Register on August 14. 1998. 

Proposed Effective Date: August 1. 2000 

\ Public Hearing will be conducted at 7:00 p.m. on August 19. 
1999 at the Archdale Building, Ground Floor Hearing Room, 
Raleigh. NC. 

Reason for Proposed Action: The present fee collection 
schedule is not adequate to support the program. 



IComment Procedures: Comments will he accepted through 
WAugiist 19. 1999. Written comments should be delivered or 

amailed to James I',, Mexer. DENR/DWQ Lab Section, 4405 

W^edy Creek Road Raleigh. NC 27607-6445. 

Fiscal Note: This Rule does affect the expenditures of local 
government funds. This Rule affects the expenditure or 
distribution of State funds subject to the E.xecutive Budget Act. 
Article I of Chapter 143 and does not have a substantial 
economic impact of at least five million dollars ($5,000,000) in a 
12-mouth period. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2H - PROCEDURES FOR PERMITS: 
APPROVALS 

SECTION .0800 - LABORATORY CERTIFICATION 

0806 FEES ASSOCIATED WITH CERTIFICATION 
PROGRAM 

(a) Municipal and industrial laboratories must pay an annual 
fee of fifty dollars ($50.00) for each inorganic parameter plus 
one hundred dollars ($100.00) for each organic parameter; 
however, the minimum fee will be one — thousand dollars 
($1,000.00) one thousand two hundred fifty dollars ($1.250) per 
year. 

(h) Commercial laboratories must pay an annual fee of fifty 

t pilars ($50.00) for each inorganic parameter plus one hundred 
ollars ($100.00) for each organic parameter; however, the 



minimum fee will be two thousand dollars ($2,000.00) two 
thousand five hundred dollars ($2.500) per year. 

(c) Prior to receiving initial certification a laboratory must pay 
the appropriate fee as specified in Paragraph (a) or (b) of this 
Rule. Initial certification fee will be prorated on a semi-annual 
basis to make all certification renewals due on the first day of 
January. 

(d) Once certified, a laboratory must pay the full annual 
parameter fee for each parameter added to their certificate. 

(e) A laboratory decertified for all parameters must pay initial 
certification fees prior to recertification. 

(f) A laboratory decertified for one or more parameters must 
pay a fee of one hundred dollars ($100.00) for each parameter 
for which it was decertified prior to recertification. 

(g) Out-of-state laboratories shall reimburse the state for 
actual travel and subsistence costs incurred in certification and 
maintenance of certification. 

(h) Annual certification fees are due by December 31 of each 
year. 

(i ) A fifty dollar ($50.00) late payment fee must be paid when 
annual certification fees are not paid by the date due. 

(j) For laboratories seeking initial certification or 
recertification, the State Laboratory will provide two 
performance samples for each parameter at no charge; however, 
a fee of one hundred dollars ($100.00) per sample will be 
charged for all samples after the first two have been supplied. 

(k) Metals group 1 and metals group II will be considered as 
single parameters when calculating fees. 

Authoritx G.S. 143-215. 3(a)(n: 143-215. 3(a)(10). 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the Conunission for Health Services intends to amend 
the rules cited as I5A NCAC 23 .0201 -.0202. .0204. Notice of 
Rule-making Proceedings was published in the Register on May 
14. 1999. 

Proposed Effective Date: August I, 2000 

A Public Hearing will be conducted at 9:00 a.m. on August 3. 
1999 at the Archdale Building. Ground Floor Hearing Room. 
Raleigh. NC. 

Reason for Proposed .4ction: 

75 NCAC 23 .0201 - The purpose for this proposed action is to 

amend this Rule to cite G.S. 1 30A-3H7. which establishes the fee 



14:2 



NORTH CAROLINA REGISTER 



July 15, 1999 



80 



PROPOSED RULES 



amount for a medical examiner investigation, in lieu of stating 
the exact amount of the fee. In addition, the rule is amended to 
insert the phrase "or fatal injury" to make the rule consistent 
with the current statutory language. 

15 NCAC 23 .0202 - The purpose for this proposed action is to 
amend this Rule to cite G.S. J30A-S89, which establishes the fee 
amount for a medical examiner ordered autopsy, in lieu of 
stating the exact amount of the fee. Also, at the same time the fee 
was increased (1997-98 Legislative Session), revision of the fee 
reduction schedule for late autopsy reports was taken into 
consideration. This rule amendment changes the time period for 
a fee reduction for late autopsy reports from 60/120 days to 180 
days. The change to the fee reduction schedule allows a less 
burdensome time and monetaiy constraint for pathologists to 
submit reports. 

15A NCAC 23.0204 - The purpose for this proposed action is to 
amend rule 15A-23.0204 to change the fee the state pays to 
hospital for body storage in a medical examiner case from $20 
to $40 dollars to make the rule consistent with internal practice 
since 1991. 

Comment Procedures: Comments, statements, data and other 
information may he submitted in writing within 60 days after the 
date of publication of this issue in the NC Register. Copies of 
the proposed rules and information packages may be obtained 
by contacting the Office of the Chief Medical E.xaminer (OCME) 
at (919) 966-2253. Written comments max be submitted to John 
D. Butts, MD, OCME, Campus Box 7580. Chapel Hill. NC 
27599-7580. 

Fiscal Note: 15 NCAC 23 .0201 and .0204 do not affect the 
expenditures or revenues of state or local government funds and 
do not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 15 NCAC .0202 
does affect the expenditures or revenues of state or local 
government funds and does not have a substantial economic 
impact of at least five million dollars ($5,000,000) in a 12-month 
period. 

CHAPTER 23 - DIVISION OF POSTMORTEM 
MEDICOLEGAL EXAMINATION 

SECTION .0200 - FEES 

.0201 MEDICAL EXAMINER FEE 

For each investigation including the making of the required 
reports, the medical examiner shall receive a fee of fitly dollars 
( $50. 00 ) as established m CIS, l3()A-387 to be paid by the state 
unless the decedent is a legal resident of the county in which 
death or fatal injurv occurred, in which event such county shall 
he responsible for the fee. 

Autlwritv G.S. 13()A-38I: 130A-387: 130A-393. 



.0202 



PATHOLOGY FEE 



For each autopsy ordered by a county medical examiner or the 
chief medical examiner, the pathologist shall receive a fee 
four hundred dollars ($400.00) as established in G.S. I.^OA-3l 
when the autopsy report is received at the Office of the Chi&T 
Medical Examiner. Examiner with in 6 days from t he date of 
a u topsy. The fee shall be three hundred fifty dollars ($.150.0O) l| 



eight hu n d r ed seventy five dollars (S^ 



reports receive c 



afte r 60 days but within 120 days from the date of autopsy.. 
There will be no fee for reports received after the i^ 180 day 
period, unless the Chief Medical Examiner determines that the 
delay was beyond the control of the pathologist. The fee shall be 
paid by the state unless the decedent is a legal resident of the 
county in which death or fatal injury occurred, in which evem 
the county of residence shall be responsible for the fee. 

Authority' G.S. 130A-389: 130A-393. 

.0204 HOSPITAL FEE 

A fee of tw e n t y dol lar s ($20. 00) fort\ dollars ($40.00) is paid 
by the state to a hospital when a county medical examiner orders 
a body taken to the hospital and later examines the body in thai 
facility. No payment is due a hospital when an autopsy is. 
performed in that facility. No payment is due when the county 
medical examiner utilizes a hospital emergency room or otker 
hospital facility for examination of a body transported to the 
hospital for examination. 



AuthontxG.S 130A-381: 130A-393. 



« 



:i::!;:i:^^H«:J;:i::i:^^;ic:};H*^ii^H<^^5i! 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Department of Health & Human Services intends to 
amend the rules cited as 15A NCAC 23 .0501. Notice of Rule- 
making Proceedings was published in the Register on Max 14. 
1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 9:00 a.m. on August 3, 
1999 at the Archdale Building. Ground Flo(>r Hearing Room. 
Raleigh, NC. 

Reason for Proposed Action: The purpose for this proposed 
action is to amend rule 1 5A-23.0501 to change the fee paid by 
private individuals to medical examiners for investigations made 
on their behalf in order to obtain the required certification 
before conducting a cremation or burial at sea. The fee increase 
from $35 to $50 dollars has been in effect by practice for a 
number of years and is within the bounds set by the Secretary of 
the Department as stated in G.S. 130A-388, " Fen- making this 
certification, the medical e.xaminer shall be entitled to a fee in an 
anunint determined reasonable and appropriate by tjt 
Secretan; not to exceed fifty dollars ($50.00), to be paid by tm 
applicant. " 



81 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



PROPOSED RULES 



I C 

1 "' 

V 

,1 






Comment Procedures: Comments, statements, data and other 
information may be submitted in writing within 60 days after the 

'ate of publication of this issue in the NC Register. Copies of 
'the proposed rules and information packages may be obtained 

y contacting the Office of the Chief Medical Examiner (OCMEj 
at (9 J 9) 966-2253. Written comments may be submitted to John 
D. Butts. MD. OCME. Campus Bo.x 7580. Chapel Hill. NC 
27599-7580. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds and does not have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

SECTION .0500 - MEDICAL EXAMINER'S 
INVESTIGATION 



.0501 INVESTIGATION BEFORE CREMATION 
OR BURIAL AT SEA 

When a medical examiner makes a certification pursuant to 
this Rule, the person requesting the certification shall pay a fee 
of thii t y-five dolla r s ($35.00) fifty dollars ($50.00) to the 
medical examiner. However, no fee shall be charged for the 
investigation of a death that comes within the jurisdiction of the 
Chief Medical Examiner pursuant to G.S. 130A-383 or G.S. 
130A-384. For the purposes of this Section, deaths in 
association with medically unattended deliveries, or delivery by 
midwife who is approved pursuant to G.S. 90-178.1 et seq.. are 
onsidered to fall within the jurisdiction of the Chief Medical 
Examiner pursuant to G.S. 130A-383 and G.S. 130A-384. 



Authority- G.S. I30A-388: I30A-393. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 
CHAPTER 36 - BOARD OF NURSING 

Notice is hereby given in accordance with G.S. I50B-2J.2 
that the North Carolina Board of Nursing intends to amend 
the rule cited as 21 NCAC 36 .0213. Notice of Rule-making 
Proceedings was published in the Register on April 15. 1999. 

Proposed Effective Date: August I. 2000 

A Public Hearing will be conducted at J .00 p.m. on September 
23. 1999 at the Homewood Suites Hotel, 5700 Creedmoor Road. 
Raleigh. NC. 

Reason for Proposed Action: The National Council State 

Boards of Nursing have changed their policy on the frequency of 

J)ffering applicants the opportunit}- to re-take the examination 

Uhich leads to licensure as a registered nurse or licensed 

practical nurse. 



Comment Procedures: Comments regarding this action should 
be directed to Jean H. Stanley. APA Coordinator. NC Board of 
Nursing. PO Box 2129. Raleigh. NC 27602-2129. Comments 
must be received by the end of the public hearing on September 
23. 1999. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds and does not have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

SECTION .0200 - LICENSURE 

.0213 REEXAMINATION 

An applicant who fails an examination and is eligible to retake 
a subsequent examination must submit a completed Board of 
Nursing application, a completed testing service registration 
form, and related fees. The applicant is eligible to retake the 
examination no — mo r e frequently — than every 90 days, in 
accordance with the time frame specified by the National 
Council of Stale Boards of Nursini:. Inc. 

Authors- G.S. 90-171.31: 90-171.33: 90-171.38. 



TITLE 24 - INDEPENDENT AGENCIES 

CHAPTER 1 - NORTH CAROLINA HOUSING FINANCE 
AGENCY 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the North Carolina Housing Finance Agency intends to 
amend the rule cited as 24 NCAC IH .0103. Notice of Rule- 
making Proceedings was published in the Register on May 14. 
1999. 

Proposed Effective Date: August 3, 2000 

A Public Hearing will be conducted at 10:00 a.m. on August 2. 
1999 at the NCHFA. 3801 Lake Boone Trail. Raleigh. NC. 

Reason for Proposed .\ction: Update section to reflect normal 
changes in the housing market and to aid in the ease of 
understanding the methodology used in determining eligibility 
for occupancy. 

Comment Procedures: Conunents should be sent to Steve 
Culnon at North Carolina Housing Agency, PO Box 28066. 
Raleigh. NC 2761 1-8066. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local gave nunent funds and does not have a 
substantial ecoiwmic impact of at least five million dollais 
($5,000,000) in a 1 2-month period. 



14:2 



NORTH CAROLINA REGISTER 



July 15, 1999 



82 



APPROVED RULES 



SUBCHAPTER IH - MULTIFAMILY SUBSIDIZED 
RENTAL PROGRAM 



SECTION .0100 - GENERAL INFORMATION 



.0103 PERSONS AND FAMILIES OF MODERATE 
INCOME 

(a) The agency hereby finds and declares that persons and 
families of moderate income, within the meaning of the Act, are 
deemed to be those persons and families who satisfy the 
following criteria: insufficient total income, when size of family 
is considered, to obtain on the normal housing market from 
available housing supply in a given geographical area of 
residence in North Carolina, housing found to be decent, safe 
and sanitary without undue financial hardship. The agency has 
carefully ccmsidered all the factors which the General Assembly 
has specified in the statutory definition of "persons and families 
of moderate income." A purpose of the Act is to foster the new 
construction and substantial rehabilitation of residential housing 
in the state of persons and families of moderate income by 
assisting in the permanent financing of such housing and that the 
income limits used by the agency in ascertaining who are 
"persons and families of moderate income" must reflect, among 
other things, the cost of such newly constructed and substantially 
rehabilitated housing. The General Assembly intended, by 
means of the Act. to assist not only those persons and families 
eligible for federal housing assistance, predicated on a lower 
income basis, and those persons and families whose incomes are 
too high to qualify them for such federal assistance but are too 
low to enable them to obtain, without governinental assistance, a 
mortgage kian to finance the purchase of a decent, safe and 
sanitary home, but also those who could not acquire such 
housing without undue financial hardship. The agency can best 
effectuate the purposes of the Act by establishing income limits 
for specific areas of the state which represent the agency's 
determination of the ma.ximum income level which persons and 
families in such areas may have in order to qualify for assistance 
under this median income by area, construction costs, and 
mortgage loan underwriting criteria. Each factor is applied as 
follows to achieve an equitable result: 

(1) The agency will use 150 percent of median income as 
published periodically by the Department of Housing 
and Urban Development. 

(2) Housing construction costs were determined for a 
prototype of modest housing using the average area 
per person safe harbor limits for sintile family 
residences, i n va r ious a r ea of the state. The Ma r s h a l l 
Swift Ha n dbook was — used to establish the base 
comslruction costs. Finally, minimum lot costs in rural 
and urban areas, and metropolitan cities were added to 



(3) 



(4) 



the construction cos t deleirniiiatioiis t o produce a 
finished h ou s i n g cost for rural areas, for ur b an ai ' eas, 
and for metropolitan cities. 

Mortgage lending industry underwriting standarcB 
which establish the amount of loan for which s* 
sponsor may qualify, will be used by the agency. The 
agency assumes the sponsor would seek financing at 
the FHA maximum rate on a 30 40 year amortization 
rate and the tenant will be restricted to using 30 
percent of his gross monthly income as rent to make 
the project feasible. 

Composite figures for median income and for housing 
costs and mortgage loans underwriting are calculated 
upon the following premises: 

(A) The median income factor relates to eligibility 
for other housing predicated upon a moderate 
income basis. 

(B) The house cost/underwriting figure establishes 
minimum financial eligibility in the normal 
housing market. 

The combination of the two figures at a 50:50 ration establishes 
the maximum moderate income limits for the agency. 

(b) An applicant's income will be calculated by including all 
income in whatever form and from whatever source derived, 
including the following: compensation for services, including 
fees, commission and similar items; gross income derived from 
business: gains derived from dealings in property: interest: rents; 
royalties: dividends; alimony and separate maintenance 
payments; annuities: income from life insurance and endowmei 
contracts: pensions; income from discharge of indebtednes: 
distributive trust; payment made by or on behalf of an employer 
by reason of death of an employee to the widow or heirs of the 
employee: recovery of bad debts: amount received as 
reimbursement for losses; prizes and awards; amounts received 
or made available from individual retirement accounts, annuities, 
and retirement bonds. In addition, the calculation of an 
applicant's income for this purpose will be increased by an 
amount equal to ten percent of the value of all the applicant's 
non-income producing tangible assets, excepting personal 
property and including real property, securities and stocks. 

(c) The agency deems that persons and families with annual 
incomes not in excess of the income limits established by 
application of the formula in this Rule are persons and families 
which require such assistance as is made available by the Act 
and such persons and families are hereby deemed, therefore, to 
he persons of moderate income eligible to occupy residential 
housing financed by means of such assistance. 

Authority G.S. I22A-3; 122A-5; 122A-5.4. 



s*- 



( 



83 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



APPROVED RULES 



I' 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting 
of April 75. 1999 pursuant to G.S. 1 50B-21. 17(a)(1) and reported to the Joint Legislative Administrative Procedure 
Oversight Committee pursuant to G.S. 150B-2I.I6. The full text of rules are published below when the rules have been 
approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be 
published in the Register. The rules published in full te.xt are identified by an * in the listing of approved rules. Statutory 
Reference: G.S. 1508-21.17. 

These rules unless otherwise noted, will become effective on the 31st legislative day of the 2000 Session of the General 
Assemblx or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the dav the bill 
receives an unfavorable final action or the day the General Assembly adjourns. Statutoiy reference: G.S. I50B-2I .3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



I5A 


NCAC 


lOB 


.0113* 


15A 


NCAC 


lOB 


.0202 - 


15A 


NCAC 


lOB 


.0205* 


I5A 


NCAC 


lOB 


.0209 


15A 


NCAC 


JOB 


.0302 


I5A 


NCAC 


IOC 


.0107* 


15A 


NCAC 


IOC 


.0205 


ISA 


NCAC 


IOC 


.0305* 


15A 


NCAC 


IOC 


.0401 


ISA 


NCAC 


lOD 


.0102 


ISA 


NCAC 


lOD 


.0103* 


ISA 


NCAC 


lOF 


.0317 


ISA 


NCAC 


lOF 


.0330 


ISA 


NCAC 


18A 


.1808* 


ISA 


NCAC 


18A 


.1810 


ISA 


NCAC 


ISA 


.1812* 


17 


NCAC 


06B 


.0118* 


19A 


NCAC 


02D 


.04 1 5 


21 


NCAC 


10 


.0203* 



.0203* 



13: 12 NCR 949 


13;12NCR949 


13:12 NCR 949 


13: 12 NCR 949 


13: 12 NCR 949 


13:12 NCR 949 


13: 12 NCR 949 


13:12 NCR 949 


13: 12 NCR 949 


13: 12 NCR 949 


13: 12 NCR 949 


13:14 NCR 1116 


13:15 NCR 1217 


13:13 NCR 1047 


13:13 NCR 1048 


13:13 NCR 1048 


not required, G.S 


13: 14 NCR 1116 


13: 14 NCR 1117 



lSOB-21.4; 1 SOB- 1(d)(4) 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 

.0113 BIG GAME KILL REPORTS 

(a) Upon killing a bear, deer, wild boar, or wild turkey and 
before moving the animal from the site of kill, the successful 
hunter must validate the Big Game Harvest Report Card 
furnished with the big game hunting license by cutting or 
punching out the validation box that correctly identifies the big 

|game animal harvested. 

' (b) Before any harvested bear, deer, wild boar, or wild turkey 
is skinned, dressed, or dismembered for consumption and within 



24 hours of the kill, the animal must be transported to a Wildlife 
Cooperator Agent within the immediate area of open season to 
be registered or reported through the toll free Big Game 
Reporting System. The hunter may field dress the animal at the 
site of kill or before registering it at a Wildlife Cooperator Agent 
or by telephone by bleeding and removing the digestive, 
respiratory, and circulatory organs: but, the hunter may not 
mutilate the carcass in a manner that obscures its species 
identity, age, or sex. When the kill occurs in a remote area, 
which prevents the animal from being transported as an entire 
carcass, the animal may be skinned and quartered before being 
reported by telephone or transported to a Wildlife Cooperator 
Agent to be registered. When a hunter harvests a big game 
animal in a remote area and plans to remain in the remote area 
for longer than a day, the 24-hour time limit to register the kill is 
extended until the hunter leaves the area. Upon leaving the 
remote area, the hunter shall proceed directly to a telephone or to 
a Wildlife Cooperator Agent to register the kill. 



14:2 



NORTH CAROLINA REGISTER 



July 75, 1999 



84 



APPROVED RULES 



(c) When a successful hunter presents a big game kill at a 
Wildlife Cooperator Agent for registration, the Wildlife 
Cooperator Agent shall issue an authorization number, which 
includes the date of kill, to the successful big game hunter. The 
hunter shall record the authorization number given by the 
Wildlife Cooperator Agent or obtained by telephone in the space 
provided immediately adjacent to the validation box that has 
been cut or punched out on the Big Game Harvest Report Card. 
The record entered on the Big Game Harvest Report Card shall 
thereafter constitute authorization for continued possession of 
the carcass. Possession of a harvested bear, deer, wild boar, or 
wild turkey without a validated Big Game Harvest Report Card 
including the authorization number obtained from a Wildlife 
Cooperator Agent or through the toll free Big Game Reporting 
System shall be unlawful. 

(d) Persons killing a big game animal and leaving it 
unattended must identify the carcass with their name, their 
hunting license number, and the date of kill. Once an unattended 
animal is registered the animal need only be identified with the 
authorization number received at the Wildlife Cooperator Agent 
or by telephone. It shall he unlawful for a person to possess a 
Big Game Harvest Report Card on which the species validation 
box has been cut or punched out, but on which the authorization 
number from a Wildlife Cooperator Agent has not been 
recorded, unless the animal is in the person's possession and 
being transported to a Wildlife Cooperator Agent or identified as 
described in this paragraph. 

(e) Persons who are by law exempt from the big game 
hunting license shall obtain a Big Game Harvest Report Card for 
License Exempt Hunters from a Wildlife Service Agent at no 
cost. Upon har\ esting a bear. deer, wild boar, or wild turkey, the 
exempt person shall validate the Big Game Harvest Record Card 
and report the big game kill at a Wildlife Cooperator Agent or by 
telephone as provided by this Rule. 

(f) Persons killing antlerless deer under the Deer Management 
Assistance Program pursuant to G. S. 11 3-29 1.2(e) shall follow 
the tagging and reporting requirements set forth by statute and 
are not obligated to take any action under this Rule. 

History Note: Anilwnt} G.S. I13-LU: 11 3-270. .=i: 113-276.1: 

Eff. Februaiy 1. 1976: 

Amended Eff. Juh 1. 1998: July I. 1997: Julv I. 1995: 

Jid\ 1. 1994: July 1. 1993: July 1. 1989: 

Temporaiy Amendment EJf. J[il\ I. 1999: 

Amended Eff. Jnlx 1. 2000. 

SECTION .02«)0 - HUNTING 

.0202 BEAR 

(a) Open Seasons for bear shall be from the: 
( 1 ) Monday on or nearest October 1 5 to the Saturday 
before Thanksgiving and the third Monday after 
Thanksgiving to January 1 in and west of the boundary 
formed by NC 1 13 from the Virginia State line to the 
inlersecti()n with NC 18 and NC 18 to the South 
Carolina State line. 



(3) 



(4) 



(5) 



(2) Second Monday in November to the following 
Saturday and the third Monday after Thanksgiving to 
the following Wednesday in all of Hertford County; 
and in the following parts of counties: 
Halifax: that part east of US 301. 
Martin: that part east of US 1 7. 
Northampton: that part east of US 301 . 
Second Monday in November to January 1 in all of 
Bladen. Carteret. Duplin. New Hanover. Onslow and 
Pender counties; and in the following parts of 
counties: 

Cumberland: that part south of NC 24 and east of the 
Cape Fear River. 

Sampson: that part south of NC 24. 
Second Monday in December to January 1 in 
Brunswick and Columbus counties. 
Second Monday in November to the following 
Saturday and the third Monday after Thanksgiving to 
the fifth Saturday after Thanksgiving in all of 
Beaufort, Bertie. Camden, Craven, Dare, Gates, Hyde, 
Jones, Pamlico. Pasquotank. Tyrrell, and Washington 
counties, and in the following parts of counties: 
Chowan: that part north of a line formed by SR 1002, 
SR 1222, and SRI 220. 

Currituck: except Knotts Island and the Outer Banks. 
(b) No Open Season. There is no open season in any area not 
included in Paragraph (a) of this Rule or in those parts of 
counties included in the following posted bear sanctuaries: 

Avery, Burke and Caldwell counties-Daniel Boont^ 

bear sanctuary " 

Beaufort, Bertie and Washington counties— Bachelor 

Bay bear sanctuary 

Beaufort and Pamlico counties--Gum Swamp bear 

sanctuary 

Bladen County-Suggs Mill Pond bear sanctuary 

Brunswick County-Green Swamp bear sanctuary 

Buncombe, Haywood. Henderson and Transylvania 

counties— Pisgah bear sanctuary 

Carteret, Craven and Jones counties-Croatan bear 

sanctuary 

Clay County— Fires Creek bear sanctuary 

Columbus County-Columhus County bear sanctuary 

Currituck County-North River bear sanctuary 

Dare County— Bombing Range bear sanctuary 

Haywood County-Harmon Den bear sanctuary 

Haywood County-Sherwood bear sanctuary 

Hyde County-Gull Rock bear sanctuary 

Hyde County— Pungo River bear sanctuary 

Jackson County-Panthertown-Bonas Defeat 

sanctuary 

Jones and Onslow counties--Hofmann bear sanctuary 

Macon County-Standing Indian bear sanctuary 

Macon County-Wayah bear sanctuary 

Madison County-Rich Mountain bear sanctuary 

McDowell and Yancey counties— Mt. Mitchel 

sanctuary 



i) 



bear 



i 



beail. 



85 



NORTH CAROLINA REGISTER 



Julv 15. 1999 



14:02 



APPROVED RULES 



Mitchell and Yancey counties— Flat Top bear 

sanctuary 

Wilkes County— Thurmond Chatham bear sanctuary 

(c) Bag limits shall be: 

(1) daily, one; 

(2) possession, one; 

(3) season, one. 

(d) Kill Reports. The carcass of each bear shall be tagged and 
the kill reported as provided by 15A NCAC lOB .01 1.1 

History Note: Authors G.S. 1 13-134: 1 13-291.2: 1 13-291. 7: 

113-305: 

Eff. Febniaiy 1. 1976: 

Amended Eff. Jiih 1. 1998: September I. 1995: Jtdx I. 1995: 

July 1. 1994: April I. 1992: 

Temporary Amendment EJf. July I, 1999; 

Amended Eff. July I, 2000. 

.0203 DEER (WHITE-TAILED) 

(a) Closed Season. All counties and parts of counties not 
listed under the open seasons in Paragraph (b) in this Rule shall 
be closed to deer hunting. 

(b) Open Seasons (All Lawful Weapons) 

(1) Deer With Visible Antlers. Deer with antlers or spikes 
protruding through the skin, as distinguished from 
knobs or buttons covered by skin or velvet, may be 
taken during the following seasons: 

(A) Monday on or nearest October 15 through 
V January I in all of Beaufort, Bertie. Bladen, 
' Brunswick, Camden, Carteret, Chowan, 

Columbus*, Craven, Currituck, Dare. Duplin, 
Edgecombe, Franklin, Gates, Greene. Halifax, 
Hertford, Hoke, Hyde. Johnston, Jones. Lenoir. 
Martin, Nash, New Hanover, Northampton, 
Onslow, Pamlico, Pasquotank, Pender, 
Perquimans, Pitt, Richmond**, Robeson, 
Sampson, Scotland**, Tyrrell, Vance, Wake, 
Warren, Washington, Wayne, and Wilson 
counties, and the following parts of counties: 
Cumberland; All of the county except that part 
east of US 401, north of NC 24, and west of L 
95; 

Harnett; That part west of NC 87; 
Moore**: All of the county except that part 
north of NC 2 1 1 and west of US 1 ; 
*Unlawful to hunt or kill deer in Lake 
Waccamaw or within 50 yards of its shoreline. 
**See 15A NCAC lOD .01()_3(f)(5,3)(B) for 
seasons on Sandhills Game Land. 

(B) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in all of 
Alexander, Alleghany. Ashe. Catawba. Davie. 
Forsyth, Iredell, Stokes, Surry. Watauga. 

k Wilkes, and Yadkin counties. 

' (C) Monday of Thanksgiving week through the 

third Saturday after Thanksgiving Day in all of 
Avery. Buncombe. Burke. Caldwell. Cherokee. 



Clay, Graham, Haywood, Henderson, Jackson, 
Macon, Madison, McDowell, Mitchell, Polk, 
Swain, Transylvania, and Yancey counties. 

(D) Monday before Thanksgiving week through 
January 1 in all of Alamance, Anson, Cabarrus, 
Caswell, Chatham, Davidson, Durham. 
Granville, Guilford, Lee, Mecklenburg, 
Montgomery, Orange, Person, Randolph, 
Rockingham, Rowan, Stanly, and Union 
counties, and in the following parts of counties; 
Cumberland; That part east of US 401 , north of 
NC 24 and west of 1-95; 

Harnett; That part east of NC 87; 

Moore; That part north of NC 2 1 1 and west of 

US 1; 

(E) Monday on or nearest September 10 through 
January 1 in those parts of Camden, Gates and 
Pasquotank counties known as the Dismal 
Swamp National Wildlife Refuge, in those parts 
of Hyde. Tyrrell and Washington counties 
known as the Pocosin Lakes National Wildlife 
Refuge, in those parts of Anson and Richmond 
counties known as the Pec Dee National 
Wildlife Refuge, and in that part of Currituck 
County known as the Mackay Island National 
Wildlife Refuge; 

(F) Monday of Thanksgiving week through the fifth 
Saturday after Thanksgiving Day in all of 
Cleveland, Gaston, Lincoln, and Rutherford 
counties. 

(2) Deer of Either Sex. Except on Game Lands, deer of 
either sex may be taken during the open seasons and in 
the counties and portions of counties listed in this 
Subparagraph (See lOD .0103 for either sex seasons 
on Game Lands); 

(A) The open either-sex deer hunting dates 
established by the U.S. Fish and Wildlife 
Service during the period from the Monday on 
or nearest September 10 through January 1 in 
those parts of Camden, Gates and Pasquotank 
counties known as the Dismal Swamp National 
Wildlife Refuge, in those parts of Hyde. Tyrrell 
and Washington counties known as the Pocosin 
Lakes National Wildlife Refuge, in those parts 
of Anson and Richmond counties known as the 
Pee Dee National Wildlife Refuge, and in that 
part of Currituck County known as the Mackay 
Island National Wildlife Refuge. 

(B) The open either-sex deer hunting dates 
established by the appropriate military 
commands during the period from Monday on 
or nearest October 15 through January 1 in that 
part of Brunswick County known as the Sunny 
Point Military Ocean Terminal, in that part of 
Craven County known and marked as Cherry 
Point Marine Base, in thai part of Onslow 
County known and marked as the Camp 



14:2 



NORTH CAROLINA REGISTER 



July 15, 1999 



86 



APPROVED RULES 



Lejeune Marine Base, on Fort Bragg Military 
Reservation, and on Camp Mactcall Military 
Reservation. 

(C) First Saturday in October for youth either sex 
deer hunting by permit only on a portion of 
Belews Creek Steam Station in Stokes County 
designated by agents of the Commission. 

(D) The last open day of the Deer with Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Buncombe, 
Haywood, Henderson, Madison, Mitchell, Polk. 
Transylvania, and Yancey counties and the 
following parts of counties: 

Avery: That part south of the Blue Ridge 

Parkway. 

Robeson: That part west of 1-95. 

Scotland: That part south of US 74. 

(E) The last six open days of the Deer With Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Burke, Caldwell, 
Catawba, Gaston, Lincoln, McDowell, and 
Watauga and the following parts of counties: 
Camden: That part south of US 158. 

Dare: Except the Outer Banks north of 
Whalebone. 

(F) The first six open days and the last six open 
days of the Deer with Visible Antlers season 
described in Subparagraph (b)( 1 ) of this Rule in 
all of Carteret, Cleveland, Harnett, Hoke, 
Pamlico, Richmond, Rutherford, counties and 
in the following parts of counties: 
Columbus: That part west of US 74, SR 1005. 
andSR 1125. 

Cumberland: That part west of 1-95. 

Moore: All of the county except that part north 

of NC 2 1 1 and west of US 1 . 

Robeson: That part east of 1-95. 

Scotland: That part north of US 74. 

(G) The first six open days, open days the week of 
Thanksgiving, and the last six open days of the 
Deer with Visible Antlers season described in 
Subparagraph (b)(1) of this Rule in all of 
Greene, Pasquotank, Tyrrell, Wayne and 
Wilson counties and in the following parts of 
counties: 

Camden: That part north of US 158. 

Chowan: That part north of US 17 and west of 

NC ,^2. 

Currituck: All of the county except the Outer 

Banks. 

Nash: That part south of NC 97.' 

Johnston: That part north of US 70 or west of 

1-95. 

In addition, one anterless deer may be taken 

anytime during the Deer With Visible Antlers 

season in the counties listed in this part. 



(H) All the open days of the Deer With Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Alamance, 
Alexander, Alleghany, Anson, Ashe, Beaufoi 
Bertie, Bladen, Brunswick, Cabarrus, Caswel 
Chatham, Craven, Davidson, Davie, Duplin 
Durham. Edgecombe, Forsyth, Franklin, Gates, 
Granville, Guilford. Halifax, Hertford, Hyde, 
Iredell, Jones, Lee. Lenoir, Martin, 
Mecklenburg, Montgomery, New Hanover, 
Northampton, Onslow, Orange. Pender, 
Perquimans, Person, Pitt, Randolph, 
Rockingham, Rowan, Sampson, Stanly, Stokes, 
Surry, Union, Vance, Wake, Warren, 
Washington. Wilkes and Yadkin counties, and 
in the following parts of counties: 
Buncombe: That part east of NC 191, south of 
the French Broad and Swannanoa Rivers, west 
of US 25. and north of NC 280. 
Chowan: That part south of US 17 or east of 
NC ,^2. 

Columbus: That part east of a line formed by 
US74, SR 1005, and SR 1125. 
Cumberland: That part east of 1-95. 
Dare: That part of the Outer Banks north of 
Whalebone. 

Henderson: That part east of NC 191 and north 
and west of NC 280. 
Johnston: That part south of LIS 70 and east cA 
1-95. " 

Moore: That part north of NC 21 1 and west of 
US 1. 

Nash: That part north of NC 97. 
(c) Open Seasons (Bow and Arrow) 
( I ) Authorization. Subject to the restrictions set out in 
Subparagraph (2) of this Paragraph and the bag limits 
set out in Paragraph (e) of this Rule, deer of either sex 
may be taken with bow and arrow during the 
following seasons: 

(A) Monday on or nearest September 10 to the 
fourth Saturday thereafter in the counties and 
parts of counties having the open season for 
Deer With Visible Antlers specified by Part (A) 
of Subparagraph (b)( I ) of this Rule, except on 
the Sandhills Game Land and the area known as 
the (Juter Banks in Currituck County. 

(B) Monday on or nearest September 10 to the 
second Saturday before Thanksgiving in the 
counties and parts of counties having the open 
seasons for Deer With Visible Antlers specified 
by Part (B) of Subparagraph (b)( I) of this Rule 
and in Gaston and Lincoln counties. 

(C) Monday on or nearest September 10 to the 
fourth Saturday thereafter, and Monday on 
nearest October 15 to the Saturday bef 
Thanksgiving in the counties and parts of 



87 



NORTH CAROLINA REGISTER 



Julv 75, 1999 



14:02 



APPROVED RULES 







> 



counties having the open seasons tor Deer With Visible Antlers 
specified by Part (C) of Subparagraph (b)( I ) of this Rule and in 
Cleveland and Rutherford counties. 

(D) Monday on or nearest September 10 to the third 
Saturday before Thanksgiving in the counties 
and parts of counties having the open season for 
Deer With Visible Antlers specified by Part (D) 
of Subparagraph (b)(1) of this Rule, and on 
Sandhills Game Land. 
(2) Restrictions 

(A) Dogs may not be used for hunting deer during 
the bow and arrow season, 

(B) It is unlawful to carry any type of firearm while 
hunting with a bow during the bow and arrow 
deer hunting season. 

(C) Only bows and arrows of the types authorized 
in I5A NCAC I OB .01 16 for taking deer may 
be used during the bow and arrow deer hunting 
season. 

(d) Open Seasons (Muzzle-Loading Rifies and Shotguns) 

( 1 ) Authorization. Subject to the restrictions set out in 
Subparagraph (2) of this Paragraph, deer may be taken 
only with muzzle-loading firearms (except that bow 
and arrow may be used on designated and posted game 
land Archery Zones) during the following seasons; 

(A) Monday on or nearest October 8 to the 
following Saturday in Cleveland and Rutherford 
counties and in the counties and parts of 
counties having the open seasons for Deer With 
Visible Antlers specified by Parts (A) and (C) 
of Subparagraph (b)(1) of this Rule, except on 
Sandhills Game Land and the area known as the 
Outer Banks in Currituck County. 

(B) Monday to Saturday of the week preceding 
Thanksgiving week in the counties and parts of 
counties having the open seasons for Deer With 
Visible Antlers specified by Part (B) of 
Subparagraph (b)( 1 ) of this Rule and in Gaston 
and Lincoln counties. 

(C) Monday to Saturday of the second week before 
Thanksgiving week in the counties and parts of 
counties having the open season for Deer With 
Visible Antlers specified by Part (D) of 
Subparagraph (b)(1) of this Rule, and on 
Sandhills Game Land. 

(2) Restrictions 

(A) Deer of either sex may be taken during muzzle- 
loading firearms season in and east of the 
l'ollov\'ing counties; Rutherford, McDowell. 
Burke. Caldwell. Wilkes, and Ashe. Deer of 
either sex may be taken on the last day of 
muzzle-loading firearms season in all other 
counties. 

(B) Dogs shall not be used for hunting deer during 
the muzzle-loading firearms seasons. 

(C) Pistols shall not be carried while hunting deer 
durinti the muzzle-loadinii firearms seasons. 



(e) The daily bag limit shall be two and the possession limit 
six. two of which shall be antlerless. The season limit shall be 
six. two of which shall be antlerless. Antlerless deer include 
males with knobs or buttons covered by skin or velvet as 
distinguished from spikes protruding through the skin. The 
antlerless bag limits described above do not apply to antlerless 
deer harvested in areas covered in the Deer Management 
Assistance Program as described in G.S. 1 13-291. 2(e). 
Individual daily antlerless bag limits on these areas shall be 
determined by the number of special tags, issued by the Division 
of Wildlife Management as authorized by the Executive 
Director, thai shall be in the possession of the hunter. Season 
antlerless bag limits shall be set by the number of tags available. 
All antlerless deer harvested on these areas, regardless of the 
date of harvest, shall be tagged with these special tags but the 
hunter does not have to validate the Big Game Harvest Report 
Card provided with the hunting license. 

(f) Kill Reports. The kill shall be validated at the site of kill 
and the kill reported as provided by I5A NCAC lOB .01 1.1 

HIsrorxNote: Aiilhoriu- G.S. 113-134: 113-270.3: 113-276.1: 

113-291.1: 113-291.2: 

Eff. Febntan 1, 1976: 

Amended Ejf. July 1. 1998: Jidx 1. 1997: Jidx 1. 1996. 

Jiilx 1. 1995: December 1. 1994: Jidx 1. 1994; July 1, 1993: 

Temporary Amendment Eff. July f 1999: 

Amended Eft'. Julx /, 2000. 

.0205 RACCOON AND OPOSSUM 

(a) Open Season; The open season for taking raccoon and 
opossum shall be from sunrise Monday on or nearest October 15 
through the last day of February, except as follows; 

( 1 ) There is no open season for hunting raccoon or 
opossum in that part of Madison County lying north of 
the French Broad River, south of US 25-70 and west 
ofSR 1,^19. 

(2) Raccoon and opossum may be hunted only from 
sunset Friday until sunrise Saturday and from sunset 
Saturday until I2;00 midnight Saturday in that part of 
Cherokee County north of US 64 and NC 294. east of 
Persimmon Creek and Hiwassee Lake, south of 
Hiwassee Lake, and west of Nottely River. 

(?) The training of raccoon and opossum dogs is 
prohibited from March I to the Monday on or nearest 
October 15 in the following parts of counties; 

(A) Cherokee; That part north of US 64 and NC 
294. east of Persimmon Creek and Hiwassee 
Lake, south of Hiwassee Lake, and west of 
Nottely River. 

(B) Madison; That part north of the French Broad 
River, south of US 25-70. and west of SR 1 3 1 9. 

(4) The training of raccoon and opossum dogs at night is 
prohibited from April 1 through August 15 in 
Caldwell and Rutherford Counties. 

(b) Bag Limits 

(1) The daily bag limit for raccoon shall be one per 
individual up to a maximum of two per hunting party. 



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88 



APPROVED RULES 



(2) 
Note: 



The possession limit shall be two and the season limit 
20, except that in and east of Rockingham, Guilford, 
Randolph, Montgomery and Anson counties the limits 
are 3 daily with a possession limit of 6 and a season 
limit of 30. The field possession limit while hunting is 
the same as the applicable daily limit. 
There is no restriction on bag limits for opossum. 
See 15A NCAC lOB .01 1 1 prohibiting axes, saws and 
shooting in certain western counties. 

History No!e: Aiithorin- G.S. 113-134: lB-291.2: 

Eff. Februaiy 1. 1976: 

Amended Eff. July 1. 1995: July 1. 1987: July 1. 1986: 

July I. 1985: 

Temporan AmeiulmeiU Eff. July 1. 1999: 

Amended Eff July I, 2U00. 

SUBCHAPTER IOC - INLAND FISHING REGULATIONS 

SECTION .0100 - JURISDICTION OF AGENCIES: 
CLASSIFICATION OF WATERS 

.0107 SPECIAL REGULATIONS: JOINT WATERS 

In order to effectively manage all fisheries resources in joint 
waters and in order to confer enforcement powers on both 
fisheries enforcement officers and wildlife enforcement officers 
with respect to certain rules; the Marine Fisheries Commission 
and the Wildlife Resources Commission deem it necessary to 
adopt special rules for joint waters. Such rules supersede any 
inconsistent rules of the Marine Fisheries Commission or the 
Wildlife Resources Commission that would otherwise he 
applicable in joint waters under the provisions of 15A NCAC 
IOC .0106: 

( 1 ) Striped Bass 

(a) It shall be unlawful to possess any striped bass 
or striped bass hybrid taken by any means 
which is less than 18 inches long (total length). 

(b) It shall be unlawful to possess more than three 
striped bass or their hybrids taken by hook and 
line in any one day from joint waters. 

(c) It shall be unlawful to engage in net fishing for 
striped bass or their hybrids in joint waters 
except as authorized by duly adopted rules of 
the Marine Fisheries Commission. 

(d) It is unlawful to possess striped bass or striped 
bass hybrids in the joint waters of Albemarle, 
Currituck, Roanoke and Croatan Sounds and 
their tributaries, excluding the Roanoke River, 
except during seasons as authorized by duly 
adopted rules of the Marine Fisheries 
Commission. 

(e) In the joint waters of the Roanoke River and its 
tributaries, including Cashie, Middle and 
Eastmost Rivers, striped bass and hybrid striped 
bass fishing season, size limits and creel limits 
shall be the same as those established by 



authorized by duly adopted rules of the Wildlif 
Resources Commission for adjacent inland | 
fishing waters. 

(2) Lake Mattamuskeet 

(a) It shall be unlawful to set or attempt to set an 
gill net in Lake Mattamuskeet canals designated 
as joint waters. 

(b) It shall be unlawful to use or attempt to use any 
trawl net or seines in Lake Mattamuskeet canals 
designated as joint waters. 

(3) Cape Fear River. It shall be unlawful to use or attempt 
to use any net or net stakes within 800 feet of the dam 
at Lock No. 1 on Cape Fear River. 

(4) Shad: It is unlawful to possess more than 10 
American shad or hickory shad, in the aggregate, per 
person per day taken by hook-and-line. 

HistoryNote: Authority G.S. 113-132: 1 1 3- 1 34: 1 13-138: 

113-292: 

Eff. January J, 1977: 

Amended Ejf. Auwst 1. 2()()(): July I. 1993: November 1. 1991: 

January- 1. J 991: August J. 1985. 



89 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



APPROVED RULES 



SECTION .0300 - GAME FISH 



0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and creel and size limits are as 
"lUindicated in the following table: 

ed 



I 



GAME FISHES 

Mountain Trout: 
Wild Trout 
Waters 

Hatchery Supported 
Trout Waters and 
undesignated 
waters 

Muskellunge and 
Tiger Musky 

Chain Pickerel 
(Jack) 

Walleye 



I Sauger 

JIack Bass: 
Larcemouth 



Smallmouth 
and Spotted 

White Bass 

Sea Trout (Spotted 
or Speckled) 

Flounder 

Red drum (channel 
bass, red fish, 
puppy drum) 

Striped Bass 
and their hybrids 
(Morone Hybrids) 

Shad: (American 
and hickory) 

Rokanee Salmon 

Panfishes 



DAILY CREEL 


MINIMUM 




LIMITS 


SIZE LIMITS 


OPEN SEASON 


4 


7 in. 


ALL YEAR 

(exc. 2) 


7 


None 


All year, except March 1 
to 6:00 a.m. on first 

Saturday in April 
(exc. 2) 


2 


.^0 in. 


ALL YEAR 


None 


None 


ALL YEAR 


8 


None 


ALL YEAR 


(exes. 8 & 9) 




(exc. 8) 


8 


15 in. 


ALL YEAR 


5 


14 in. 


ALL YEAR 


(exc. 9) 


(exes. 3,7 & 10) 


(exc. 17) 


5 


12 in. 


ALL YEAR 


(exc. 9) 


(exes. 3. 7 & 10) 




25 


None 


ALL YEAR 


10 


12 in. 


ALL YEAR 


None 


13 in. 


ALL YEAR 


5 


I8in. 


ALL YEAR 



8 aggregate 

(exes. I & 5) 



10 aggregate 
(exc. 18) 

7 

None 



16 in. 

(exes. 1,5 & 11) 



None 



None 
None 



ALL YEAR 

(exes. 5, 13, & 15) 



ALL YEAR 
(exes. 18 & 19) 

ALL YEAR 

ALL YEAR 



l-4:2 



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90 



APPROVED RULES 



(exes. 4, 12, & 16) (exc. 12) (exc. 4) 

NONGAME FISHES None None ALL YEAR 

(exc. 14) (exc. 14) (exc. 6) 



i 



(b) Exceptions: 

(1) In the Dan River upstream from its confluence with Bannister River to the Brantly Steam Plant Dam. and in John H. Kerr, 
Gaston, and Roanoke Rapids Reservoirs, and Lake Norman, the creel limit on striped bass and Morone hybrids is four in the 
aggregate and the minimum size limit is 20 inches. 

(2) In designated public mountain trout waters the season for taking all species offish is the same as the trout fishing season. 
There is no closed season on taking trout from Nantahala River and all tributaries (excluding impoundments) upstream from 
Nantahala Lake, and the impounded waters of power reservoirs and municipally-owned water supply reservoirs open to the 
public for fishing. 

(?i) Bass taken from Calderwood Reservoir may be retained without restriction as to size limit. 

(4) On Mattamuskeet Lake, special federal regulations apply. 

(5) In the inland fishing waters of Cape Fear, Neuse. Pee-Dee. Pungo and Tar-Pamlico rivers and their tributaries and the 
Roanoke River and its tributaries, including the Cashie. Middle, and Eastmost rivers, extending upstream to the first 
impoundment, and Lake Mattamuskeet, the daily creel limit for striped bass and their hybrids is three fish and the minimum 
length limit is 18 inches. In the Roanoke River and its tributaries, including the Cashie, Middle, and Eastmost rivers, in the 
Tar-Pamlico River and its tributaries upstream of the Grimesland bridge and in the Neuse River and its tributaries upstream 
of the NC 35 bridge in Lenoir County no striped bass or striped bass hybrids between the lengths of 22 inches and 27 inches 
shall be retained during the period April 1 through May ?< 1 . 

(6) See 15A NCAC IOC .0407 for open seasons for taking nongame fishes by special devices. 

(7) The maximum combined number of black bass of all species that may be retained per day is five fish, no more than two of 
which ma\ be smaller than the applicable minimum size limit. The minimum size limit for all species of black bass is 14 
inches, with no exception in Lake Luke Marion in Moore County, in Reedy Creek Park lakes in Mecklenburg County, in 
Lake Rim in Cumberland County, in Currituck Sound and tributaries north of Wright Memorial Bridge, in North River and 
tributaries in Currituck and Camden Counties north of a line between Camden Point and the end of SR 1 1 24. in High Rock 
Lake downstream of 1-85. in Badin Lake, in Falls Lake, in Lake Tillery, in Blewett Falls Lake, and in the New River and i 
tributaries in Onslow County. In and west of Madison, Buncombe, Henderson and Polk Counties and in designated publ 
mountain trout waters the minimum size limit is 12 inches. In B. Everett Jordan Reservoir and in Falls of the Neuse 
Reservoir, east of SR 1004, a minimum size limit of 16 inches, with no exception, applies to largemouth bass. In 
Tuckertown Lake no black bass between the lengths of 1 2 inches and 1 6 inches may be retained, and the minimum size limit 
for black bass is 16 inches, except that the daily creel may contain two black bass of less than 12 inches in length. In W. 
Kerr Scott Reservoir there is no minimum size limit for spotted bass. 

(8) A minimum size limit of 1 5 inches applies to walleye taken from Lake James and its tributaries, and the daily creel limit for 
walleye is four fish in Linville River upstream from the NC 1 26 bridge above Lake James. 

(9) The creel limit for black bass and walleye taken from Calderwood Reservoir is 10. 

( 10) The minimum size limit for all black bass, with no exception, is 18 inches in the following trophy bass lakes: 
{A) Cane Creek Lake in Union County; 

(B) Lake Thom-A-Lex in Davidson County; and 

(C) Sutton Lake in New Hanover County. 

(11) In all impounded inland waters and their tributaries, except those waters described in Exceptions ( 1 ) and ( 5 ). the daily creel 
limit of striped bass and their hybrids may include not more than two fish of smaller size than the minimum size limit. 

(12) In Lake Tillery. Falls Lake. High Rock Lake. Badin Lake. Tuckertown Lake. Lake Hyco. Lake Ramseur. Cane Creek Lake 
and the Roanoke River downstream of the US 17 bridge in Williamston and its iribuaries (including the Cashie, Middle and 
Eastmost rivers and their tributaries) a daily creel limit of 20 fish and a minimum size limit of 8 inches apply to crappie. In 
Lake James, a daily creel limit of 20 fish applies to crappie. 

( 1.-?) In designated inland fishing waters of Roanoke Sound, Croatan Sound. Albemarle Sound. Chowan River. Currituck Sound, 
Alligator River, Scuppernong River, and their tributaries (excluding the Roant>ke River and Cashie River and their 
tributaries), striped bass fishing season, size limits and creel limits shall be the same as those established by duly adopted 
rules or proclamations of the Marine Fisheries Commission in adjacent joint or coastal tlshing waters. 

(14) The daily creel and length limits for channel, white, and blue catfish in designated urban lakes are provided for in i5A 
NCAC IOC .04()l(d). 



II 



i 



91 NORTH CAROLINA REGISTER July 15. 1999 14:02 



\- 



APPROVED RULES 







(15) The Executive Director may, by proclamation, suspend or extend the hook-and-line season for striped bass in the inland and 
Joint waters of coastal rivers and their tributaries. It is unlawful to violate the provisions of any proclamation issued under 
this authority. 

In the entire Lumber River from the Camp MacKall bridge (SR 1225, at the point where Richmond. Moore, Scotland, and 
Hoke counties join) to the South Carolina state line and in all public fishing waters east of 1-95, except Tar River Reservoir 
in Nash County, the daily creel limit for sunfish is .^0 in aggregate, no more than 12 of which shall be redbreast sunfish. 
In Sutton Lake, no largemouth bass may be retained from December 1 through March .^1. 

In the Pee Dee River downstream from the Blewett Falls dam, shad may be taken with special fishing devices without 
restriction to creel limits as provided for in 15A NCAC IOC .0404 (b) during the permitted special fishing device seasons 
specified in 15A NCAC IOC .0407. American and hickory shad taken under this Subparagraph may be sold as authorized 
under subsection IOC .0401. 

(19) The season for taking American and hickory shad with dip nets and bow nets is March 1 through April .^0. except in Pee 
Dee River downstream from Blewett Falls dam where the season prescribed in 15A NCAC IOC .0407 (4j and (75) is in 
effect. 



16) 



17) 
18) 



History Note: Filed as a Temporaiy Amendment Eff. December I. 1994 for a period of 180 days or until the permanent rule 
becomes effective, whichever is sooner: 

Filed as a Temporan- Amendment Eff. May 1. I99I. for a period of 180 days to expire on November I. 1991: 
Filed as a Temporary' Amendment Eff. May 22. 1990. for a period of 168 davs to expire on November I. 1990: 
Filed as a Temporary- Amendment Eff. May 10. 1990. for a period of J 80 days to expire on November I. 1990: 
Authority G.S. 113-134: 113-292: 113-304: 113-305: 
Eff. Februaty 1. 1976: 

Amended Eff. July I. 1998: July I. 1997: Juh I. 1996: Julx 1. 1995: Julx 1. 1994: July 1. 1993: October 1. 1992: 
Temporai-\ Amendment Eff. November I. 1998: 
Amended Eff. April 1. 1999: 
Temporary Amendment Eff. July I. 1999: 
Amended Eff. Juh L 2000. 



• 



SUBCHAPTER lOD - GAME LANDS REGULATIONS 
SECTION .0100 - GAME LANDS REGULATIONS 



.0103 HUNTING ON GAME LANDS 

(a) Safety Requirements. No person while hunting on any 
designated game land shall be under the influence of alcohol or 
any narcotic drug, or fail to comply with special restrictions 
enacted by the National Park Service regarding the use of the 
Blue Ridge Parkway where it adjoins game lands listed in this 
Rule. 

(b) Traffic Requirements. No person shall park a vehicle on 
game lands in such a manner as to block traffic, gates or 
otherwise prevent vehicles from using any roadway. 

(c) Tree Stands. It is unlawful to erect or to occupy, for the 
purpose of hunting, any tree stand or platform attached by nails, 
screws, bolts or wire to a tree on any game land designated 
herein. This prohibition shall not apply to lag-screw steps or 
portable stands that are removed after use with no metal left 
remaining in or attached to the tree. 

(d) Time and Manner of Taking. Except where closed to 
hunting or limited to specific dates by this Chapter, hunting on 
game lands is permitted during the open season for the game or 
furbearing species being hunted. On managed waterfowl 

poundments. hunters shall not enter the posted impoundment 
reas earlier than 4;()() a.m. on the permitted hunting dales, and 
hunting is prohibited after 1:00 p.m. on such hunting dates; 
decoys shall not be set out prior to 4:00 a.m. and must be 



IT 

^re 



removed by .^:00 p.m. each day. No person shall operate any 
vessel or vehicle powered by an internal combustion engine on a 
managed waterfowl impoundment. No person shall attempt to 
obscure the sex or age of any bird or animal taken by severing 
the head or any other part thereof, or possess any bird or animal 
which has been so mutilated. No person shall place, or cause to 
be placed on any game land. salt, grain, fruit, or other foods 
without prior written authorization of the commission or its 
agent. A decision to grant or deny authorization shall be made 
based on the best management practices for the wildlife species 
in question. No person shall take or attempt to take any game 
birds or game animals attracted to such foods. No live wild 
animals or wild birds shall be removed from any game land, 
(e) Definitions: 

(1) For purposes of this Section "Eastern" season refers to 
seasons set for those counties or parts of counties 
listed in I5A NCAC lOB .02(l^(b)(l )(A); "Central" 
season refers to seasons set for those counties or parts 
of counties listed in I5A NCAC lOB .0203(b)(1)(D); 
"Northwestern" season refers to seasons set for those 
counties or parts of counties listed in 15A NCAC I OB 
.0203(b)(1)(B); "Western" season refers to seasons set 
for those counties or parts of counties listed in I5A 
NCAC 10B.020,^(b)(l)(C). 

(2) For purposes of this Section, "Dove Only Area" refers 
to a Game Land on which do\es may be taken and 
dove hunting is limited to Mondays, Wednesdays, 
Saturdays and to Thanksgiving, Christmas and New 
Year's Days within the federally-announced season. 



14:2 



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July 15, 1999 



92 



APPROVED RULES 



(3) For purposes of this Section, "Three Days per Week 
Area" refers to a Game Land on which any game may 
be taken during the open seasons and hunting is 

limited to Mondays, Wednesdays, Saturdays and (4) 

Thanksgiving, Christmas and New Year's Days. 
These "open days" also apply to either-sex hunting 
seasons listed under each game land. Raccoon and 
opossum hunting may continue until 7:00 a.m. on 
Tuesdays, until 7:00 a.m. on Thursdays, and until 
midnight on Saturdays. (5) 

(4) For purposes of this Section, "Six Days per Week 
Area" refers to a Game Land on which any game may 
be taken during the open seasons, except that: 

(A) Bears shall not be taken on lands designated 

and posted as bear sanctuaries: (6) 

(B) Wild boar shall not be taken with the use of 
dogs on such bear sanctuaries, and wild boar 
may be hunted only during the bow and arrow 
seasons, the muzzle-loading deer season and the 
regular gun season on male deer on bear 
sanctuaries; 

(C) On game lands open to deer hunting located in 
or west of the counties of Rockingham, 
Guilford, Randolph, Montgomery and Anson, 
the following rules apply to the use of dogs 
during the regular season for hunting deer with 
guns: 

(i) Except for the counties of Cherokee, 
Clay, Graham, Jackson, Macon, 
Madison, Polk, and Swain, game birds 
may be hunted with dogs. 

(ii) In the counties of Cherokee, Clay, 
Graham. Jackson. Macon, Madison, 
Polk, and Swain, small game in season 
may be hunted with dogs on all game (7) 

lands except on bear sanctuaries. 

(D) On bear sanctuaries in and west of Madison, 
Buncombe, Henderson and Polk counties dogs 
shall not be trained or allowed to run unleashed 

between March 1 and the Monday on or nearest (8) 

October 15: 
(f) Game Lands Seasons and Other Restrictions: 

(1) Alcoa Game Land in Davidson, Davie, Montgomery, 
Rowan and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six (9) 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(2) Angola Bay Game Land in Duplin and Pender 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(3) Anson Game Land in Anson County 
(A) Six Days per Week Area 



(B) 



(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season 

Bachlelor Bay Game Land in Bertie and WashingtO; 

counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Bertie County Game Land in Bertie County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

Bladen Lakes State Forest Game Land in Bladen 

County 

(A) Three Days per Week Area 

Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Deer of either sex may also be taken the 
Saturday preceding Eastern bow season with 
bow and arrow and the Friday preceding the 
Eastern muzzle-loading season with any legal 
weapon (with weapons exceptions described in 
this Paragraph) by participants in the Disabled 
Sportsman Program. 

Handguns shall not be carried and. except for 
muzzle-loaders, rifles larger than .22 calibe^ 
rimfire shall not be used or possessed. ^ 

On the Breece Tract and the Singletary Tract 
deer and bear may be taken only by still 
hunting. 
Wild turkey hunting is by permit only. 

Brushy Mountains Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Bullard and Branch Hunting Preserve Game Lands in 
Robeson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Butner - Falls of Neuse Game Land in Durham, 

Granville and Wake counties 

(A) Six Days per Week Area 

Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Waterfowl may be taken only on Tues^days, 
Thursdays and Saturdays, Christmas and New 



(C) 



(D) 



(E 



(B) 



(C) 



Year's Days, and on the opening and closin 
days of the applicable waterfowl sea,sons' 
Waterfowl shall not be taken after l:(X) p.m. On 



.11 



93 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



APPROVED RULES 



the posted waterfowl impoundments a special 
permit is required for all waterfowl hunting 
after November 1 . 

(D) Horseback riding, including all equine species, 
is prohibited. 

(E) Target shooting is prohibited 

(F) Wild turkey hunting is by permit only. 

(10) Cape Fear Game Land in Pender County (18) 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
dc-.ys of the applicable Deer With Visible 
Antlers Season. 

(C) Turkey Hunting is by permit only on that (19) 
portion known as the Roan Island Tract. 

(11) Caswell Game Land in Caswell County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible (20) 

Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Central muzzle- 
loading season by participants in the Disabled 
Sportsman Program. 

(C) Horseback riding is allowed only during June, 
July, and August and on Sundays during the 
remainder of the year except during open turkey 
and deer seasons. Horseback riding is allowed 
only on roads opened to vehicular traffic. 
Participants must obtain a game lands license 

prior to engaging in such activity. (21 ) 

(12) Caswell Farm Game Land in Lenoir County 
(A) Dove-Only Area 

(13) Catawba Game Land in Catawba and Iredell counties 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible Antlers 
Season. 

(C) Deer may be taken with bow and arrow only (22) 
from the tract known as Molly"s Backbone. 

(14) Chatham Game Land in Chatham County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the tlrst six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(15) Cherokee Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible (23) 

Antlers Season. 

(16) Cherry Farm Game Land in Wayne County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 

Antlers Season. (24) 

(C) The use of centertlre rifles and handguns is 
prohibited. 

(17) Chowan Game Land in Chowan County 
(A) Six Days per Week Area 



(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 
In addition, one antlerless deer may be taken 
anytime during the Deer With Visible Antlers 
season. 

Chowan Swamp Game Land in Gates County 

(A) Six Days per Week Area 

(B) Deer of either sex may he taken all the open 
days of the applicable Deer With Visible 
.^ntle^s Season. 

Columbus County Game Land in Columbus County. 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

Croatan Game Land in Carteret, Craven and Jones 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days: and on the 
opening and closing days of the applicable 
waterfowl seasons. 

Dare Game Land in Dare County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) No hunting on posted parts of bombing range. 

(D) The use and training of dogs is prohibited from 
March 1 through June 30. 

Dupont State Forest Game Lands in Henderson and 
Transylvania counties 

(A) Hunting is by Permit only. 

(B) The training and use of dogs for hunting except 
during scheduled small game permit hunts for 
squirrel, grouse, rabbit, or quail is prohibited. 

(C) Participants of the Disabled Sportsman Program 
may also take deer of either sex with any legal 
weapon on the Saturday prior to the first 
segment of the Western bow and arrow season. 

Dysartsville Game Land in McDowell and Rutherford 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Elk Knob Game Land in Ashe and Watauga counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 



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(25) Gardner- Webb Game Land in Cleveland County (31) 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(26) Goose Creek Game Land in Beaufort and Pamlico 
counties (32) 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) On posted waterfowl impoundments waterfowl 
may be taken only on Mondays. Wednesdays, 
Saturdays; on Thanksgiving. Christmas and 
New Year's Days; and on the opening and 
closing days of the applicable waterfowl 
seasons. After November 1, on the Pamlico 
Point, Campbell Creek, Hunting Creek and 
Spring Creek impoundments, a special permit is 
required for hunting on opening and closing 

days of the duck seasons, Saturdays of the duck (33) 

seasons, and on Thanksgiving and New Years 

day. 

(27) Green River Game Land in Henderson, Polk and 
Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six (34) 
open days of the applicable Deer With Visible 

Antlers Season in that portion in Rutherford 
County; and deer of either sex may be taken the 
last open day of the applicable Deer With 
Visible Antlers Season in that portion in Polk (35) 

and Henderson counties. 

(28) Green Swamp Game Land in Brunswick County 
(A) Six Days per Week Area 

Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 
Rock Game Land in Hyde County 
Six Days per Week Area 
Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
On the posted waterfowl impoundments of Gull 
Rock Game Land hunting of any species of 
wildlife is limited to Mondays. Wednesdays. 
Saturdays; Thanksgiving. Christmas, and New (36) 

Year's Days; and the opening and closing days 
of the applicable waterfowl seasons. 
(30) Hickorynut Mountain Game Land in McDowell 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 



(29) 



(B 



Gu 

(A) 
(B) 



(C 



Hofmann Forest Game Land in Jones and Onslow 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six^flj 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Holly Shelter Game Land in Pender County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Eastern muzzle- 
loading season with any legal weapon and the 
Saturday preceding Eastern bow season with 
bow and arrow by participants in the Disabled 
Sportsman Program 

(C) Waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons regardless of the day of the week on 
which they occur. 

Huntsville Community Farms Game Land in Yadkin 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible Antlers 
Season. 

Hyco Game land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six^ 
open days and the last six open days of the^ ' 
applicable Deer With Visible Antlers Season. 

Jordan Game Land in Chatham, Durham, Orange and 
Wake counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Mondays. 
Wednesdays. Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

(D) Horseback riding, including all equine species, 
is prohibited. 

(E) Target shooting is prohibited. 

(F) Wild turkey hunting is by permit only. 
Lantern Acres Game Land in Tyrrell and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 
In addition, one antlerless deer may be taken- 
anytime during the Deer With Visible Antlers' 
season. 



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(37) Lee Game Land in Lee County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 

open days and the last six open days of the (45) 

apphcabie Deer With Visible Antlers Season. 

(38) Linwood Game Land in Davidson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(39) Moore Game Land in Moore County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six (46) 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(40) Nantahala Game Land in Cherokee, Clay, Graham, 
Jackson, Macon, Swain and Transylvania counties 

(A) Six Days per Week Area (47) 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible Antlers 
Season in that portion located in Transylvania 
County. 

(C) Raccoon and opossum may be hunted only from 
sunset Friday until sunrise on Saturday and 
from sunset until 12;00 midnight on Saturday 
on Fires Creek Bear Sanctuary in Clay County 

and in that part of Cherokee County north of US (48) 

64 and NC 294, east of Persimmon Creek and 
Hiwassee Lake, south of Hiwassee Lake and 
west of Nottely River; in the same part of 
Cherokee County dog training is prohibited 
from March 1 to the Monday on or nearest 
October 15. 

(41 ) Neuse River Game Land in Craven County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(42) New Lake Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(43 ) North River Game Land in Currituck County 

(A) Six Days per Week Area (49) 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 

In addition, one antlerless deer may bo taken (50) 

during the Deer With Visible Antlers season. 

(44) Northwest River Marsh Game Land m Currituck 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 

open days, open days the week of (51) 

Thanksgiving, and the last six open days of the 



applicable Deer With Visible Antlers Season. 
In addition, one antlerless deer may be taken 
during the Deer With Visible Antlers season. 

Pee Dee River Game Land in Anson, Montgomery, 

Richmond and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Use of centertlre rifies prohibited in that portion 
in Anson and Richmond counties North of US- 
74. 

Perkins Game Land in Davie County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible Antlers 
Season. 

Person Game Land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and New 
Year's Days, and on the opening and closing 
days of the applicable waterfowl seasons. 

Pisgah Game Land in Avery, Buncombe, Burke, 
Caldwell, Haywood, Henderson, Madison, McDowell, 
Mitchell, Transylvania, Watauga and Yancey counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible Antlers 
Season except on that portion of Avery County 
north of the Blue Ridge Parkway and that 
portion in Haywood County encompassed by 
US 276 on the north. US 74 on the west, and 
the Blue Ridge Parkway on the south and east. 

(C) Harmon Den and Sherwood Bear Sanctuaries in 
Haywood County are closed to hunting raccoon, 
opossum and wildcat. Training raccoon and 
opossum dogs is prohibited from March 1 to the 
Monday on or nearest (\'tober 1 5 in that part of 
Madison County north of the French Broad 
River, south of US 25-70 and west of SR 1319. 

Pungo River Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Roanoke River Wetlands in Bertie, Halifax and Martin 

counties 

(A) Hunting is by Permit only. Vehicles are 
prohibited on roads or trails except those 
operated on official Commission business or by 
permit holders. 

Robeson Game Land in Robeson County 

(A) Three Days per Week Area 



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96 



APPROVED RULES 



(B) Deer ot either sex may be taken the last six (55) 

open days of the applicable Deer With Visible 
Antlers Season. 

(52) Sampson Game Land in Sampson County 

(A ) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(53) Sandhills Game Land in Moore, Richmond and 
Scotland counties (56) 

(A) Three Days per Week Area 

(B) The Deer With Visible Antlers season for deer 
consists of the open hunting dates from the 
second Monday before TTianksgiving through 
the third Saturday after Thanksgiving except on 
the field trial grounds where the gun season is 
from the second Monday before Thanksgiving 
through the Saturday following Thanksgiving. 
Deer may be taken with bow and arrow on all 
open hunting dates during the bow and arrow 
season, as well as during the regular gun 
season. Deer may be taken with muz- 
zle-loading firearms on Monday. Wednesday (57) 
and Saturday of the second week before 
Thanksgiving week, and during the Deer With 

Visible Antlers season. 

(C) Gun either-sex deer hunting is by permit only 
the Thursday and Friday before Thanksgiving 

Week. For participants in the Disabled (58) 

Sportsman Program, either-sex deer hunting 
with any legal weapon is permitted on all areas (59) 

the Thursday and Friday prior to the muzzle- 
loading season described in the preceding 
paragraph. Except for the deer seasons 
indicated in the preceding paragraph and the 
managed either-sex permit hunts, the field trial (60) 

grounds are closed to all hunting during the 
period October 22 to March 31. 

(D) In addition to the regular hunting days, 
waterfowl may be taken on the opening and 

closing days of the applicable waterfowl (61) 

seasons 

(E) Wild turkey hunting is by permit only. 

(F) Dove hunting on the field trial grounds will be 
prohibited from the second Sunday in 
September through the remainder of the hunting 
season. 

(G) No all terrain vehicles shall be used on the J. 
Robert Gordon Field Trial Area except by 
licensed hunters during deer and dove open 
seasons pursuant to 15A NCAC lOD ,nin2(m). 

(54) Sauratown Plantation Game Land in Stokes County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day ot the applicable Deer With Visible Antlers 
Season. (62) 



(B) 



(C) 



(D 



Scuppernong Game Land in Tyrrell and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first siw 
open days, open days the week o™ 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 
In addition, one antlerless deer may be taken 
during the Deer With Visible Antlers season. 

Shearon Harris Game Land in Chatham and Wake 

counties 

(A) Six Days per Week Area 

Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Waterfowl may be taken only on Tuesdays, 
Fridays, Saturdays; on Thanksgiving, Christmas 
and New Year's Days; and on the opening and 
closing days of the applicable waterfowl 
seasons. 

The use or construction of permanent hunting 
blinds is prohibited. 

South Mountains Game Land in Burke, Cleveland, 

McDowell and Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Suggs Mill Pond Game Land in Bladen County 

Hunting is by Permit only. 

Sutton Lake Game Land in New Hanover County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Three Top Mountain Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Thurmond Chatham Game Land in Wilkes County 

(A) Six Days per Week Area 

Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program may also take either-sex 
deer with bow and arrow on the Saturday prior 
to Northwestern bow and arrow season. 
Horseback riding is only allowed during June, 
July, and August and on Sundays during the 
remainder of the year except during open turkey 
and deer seasons. Horseback riding is allowed 
only on roads opened to vehicular traffic. 
Participants must obtain a game lands licen? 
prior to horseback riding on this area. 

Toxaway Game Land in Transylvania County 



II 



(B) 



(C) 



ILS^ 



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APPROVED RULES 



i 



( A ) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible Antlers 
Season. Participants of the Disabled Sportsman 
Program may also take deer of either sex with 
any legal weapon on the Saturday prior to the 
first segment of the Western bow and arrow 
season. 

(6.^) Uwharrie Game Land in Davidson, Montgomery and 
Randolph counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last open six days of the 
applicable Deer With Visible Antlers Season. 

(64) Vance Game Land in Vance County 

( A ) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) The use of dogs, centerfire ritles and handguns 
for hunting deer is prohibited on the Nutbush 
Peninsula tract. 

(65 ) White Oak River Impoundment Game Land in Onslow 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

I (C) Waterfowl may be taken on the opening and 

closing days of the applicable waterfowl 
seasons regardless of the day of the week on 
which they occur. 

(66) Yadkin Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(g) On permitted type hunts deer of either sex may be taken 
on the hunt dales indicated on the permit. Completed 
applications must be received by the Commission not later than 
the first day of September next preceding the dates of hunt. 
Permits shall be issued by random computer selection, shall be 
mailed to the permittees prior to the hunt, and shall be 
nontransferable. A hunter making a kill must tag the deer and 
report the kill to a wildlife cooperator agent or by phone. 

(h) The following game lands and refuges shall be closed to 
all hunting except to those individuals who have obtained a valid 
and current permit from the Wildlife Resources Commission: 

Bertie, Halifax and Martin counties— Roanoke River 

Wetlands; 

Bertie County— Roanoke River National Wildlife 

Refuge. 

Burke County— John's River Waterfowl Refuge 

Dare County— Dare Game Lands (Those parts of 

bombing range posted against hunting) 

Davie-Hunting Creek Swamp Waterfowl Refuge 



Gaston, Lincoln and Mecklenburg counties— Cowan's 
Ford Waterfowl Refuge. 

Henderson and Transylvania counties-Dupont State 
Forest Game Lands 

History Note: Temporary Amendment Eff. October 3. 1991: 

Aiahorit}- G.S. J J 3-134: J J 3-264: 113-291.2: 113-291.5: 

113-305: 

Eff. Eebriian- /, 1976: 

Amended Eff. July I. 199H: Jul\ 1. 1997: Jul\ I. 1996: 

September I. 1995: July 1. 1995: September 1. 1994: July 1. 

1994: 

Temporary Amendment Eff. July 1. 1999; 

Amended Eff. July 1. 2000. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1800 - SANITATION OF LODGING PLACES 

.1808 LOBBY: HALLS: STAIRS: AND VENDING 
AREAS 

(a) Ice and vending machine locations shall have ventilation 
and at least 10 foot-candles of light at 30 inches above the fioor. 

(b) Floors, walls, ceilings, windows and ventilation shall be 
kept clean and in good repair. 

(c) Furniture, fixtures, draperies, and other accessories shall 
be clean and in good repair. 

History Note: Authority G.S. I30A-248: 

Ejf. Februan 1 . 1976: 

Readopted Eff. December 5. 1977: 

.Amended Eff'. Ausu.'it l_^ 2000: Jamian- I. 1996: September 1. 

1990. 

.1812 GUESTROOMS 

(a) Lavoratories shall have lighting with a minimum of 30 
foot-candles of light at 30 inches above the floor. Where natural 
ventilation only is provided, outside openings shall be screened. 
Windows and glass doors shall be kept clean and in good repair. 
In the absence of windows, air conditioning and artificial 
lighting constitutes satisfactory compliance. 

(b) Window coverings shall be kept clean and in good repair. 

(c) Two sheets shall be provided for each bed. The lower 
sheet shall be folded under both ends of the mattress. The upper 
sheet shall be folded under the mattress at the lower end and 
folded over the cover for at least six inches at the top end. Bed 
linens, including sheets, pillow cases, blankets and bedspreads, 
shall be kept clean and in good repair. 

(d) The floors, walls, and ceilings of bedrooms, closets, and 
storage areas shall be kept clean and in good repair. Furniture, 
fixtures, carpets and other accessories shall be kept clean and in 
good repair. 

(e) All lodging establishments shall be kept free of roaches, 
flies and other pests. Guestrooms having outside openings shall 



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98 



APPROVED RULES 



have screens in good repair unless the guestroom is air 
conditioned. 

Hisron- Note: Aiitlwrin G.S. 130A-248: 

Eff. Febntan- I. 1976: 

Readopted Ejf. Decembers. 1977: 

Amended Ejf. Aufjust L 2000: August 6. 1997: Janiiaiy I. 1996: 

April I. 1992: September I. 1990: September 1. 1979. 



TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 6 - INDIVIDUAL INCOME TAX 

SUBCHAPTER 6B - INDIVIDUAL INCOME TAX 

SECTION .0100 - FILING INDIVIDUAL INCOME TAX 
RETURNS 

.0118 ELECTRONIC FILING OF INDIVIDUAL 
INCOME TAX RETURNS 

(a) Definitions. — Participants in the Federal/State Electronic 
Filing Progrann are defined as follows: 

( 1 ) Electronic Return Originator (ERO). - A firm, an 
organization, or an individual who deals directly with 
the taxpayer, who either prepares a tax return for the 
purpose of having an electronic return produced or 
collects a prepared tax return for the purpose of having 
an electronic return produced, and who ohtains the 
taxpayer's signature on Form NC 8453, Individual 
Income Tax Affirmation for Electronic Filing. 

(2) Transmitter. - A firm, an organization, or an 
individual who transmits electronic returns directly to 
the Internal Revenue Service (IRS). 

(3) Software Developer. - A person who designs software 
for the purpose of formatting returns according to 
electronic return specifications of the Internal Revenue 
Service and the North Carolina Department of 
Revenue or transmits electronic returns directly to the 
IRS. 

A firm, an organization, or an individual may choose to perform 
one or all of the functions associated with electronic filing. 

(b) Initial Participation. -- To participate in the Federal/State 
Electronic Filing Program applicants must complete Form NC 
8633, Application to Participate in the Electronic Filing 
Program, and must be accepted into the Internal Revenue Service 
Federal Electronic Filing Program. An applicant that is not a 
software developer must also receive a letter of acceptance for 
the current filing season from the Department before the 
applicant can participate in the Program. 

(c) Continued Participation. -- An applicant who participates 
in the Program one year is not required to submit an application 
for a subsequent year unless any information provided on the 
application has changed. An applicant, other than a software 
developer, who participates in the Program one year cannot 
participate in the Program in a subsequent year unless the 



applicant has received a letter of acceptance from the 
Department for that year. Each year, the Department performs a 
suitability check on participants that are not software developers 
to determine if they are eligible to participate the next year. nA ® 
action is required on the part of a participant for the Department " 
to conduct a suitability check of that participant. The 
Department must send a letter of acceptance to each participant 
who passes the suitability check and a letter of rejection to those 
who do not. A letter of rejection explains the reason for the 
rejection and the procedure to follow to appeal the rejection. 

(d) Suitability Determination. - : The following factors are 
considered in a suitability check. The existence of one or more 
of these factors will result in an applicant or previous participant 
being denied acceptance into the program: 

( 1 ) Conviction of a criminal offense under the revenue 
laws of the State of North Carolina, or of any offense 
involving dishonesty or breach of trust. 

(2) Failure to file timely and accurate tax returns, both 
personal and business. 

(3) Failure to pay personal or business tax liabilities. If 
failure to pay taxes is the determining factor in not 
being allowed to participate in the program, a 
conditional acceptance is provided. The terms of the 
acceptance are as follows: 

(A) Applicant must pay all outstanding liabilities 
within six months of the date the application is 
received by the Department of Revenue or by 
the first day allowable for transmission of 
returns, whichever is earlier. 

(B) Failure to fully pay the liabilities within si 
months results in exclusion from the electronic 
filing program. After the liability is paid, a new 
application must be submitted for 
reconsideration. 

(4) Misrepresentation on an application. 

(5) Suspension or rejection from the program in a prior 
year if corrective action is not taken and approved by 
the North Carolina Department of Revenue. 

(6) Other facts or conduct of a disreputable nature that 
would reflect adversely on the program. 

(7) Unethical practices in return preparation. 
(i) Status Levels. — The status levels of a participant in the 

electronic filing program are as follows: 

(1) Accepted in good standing - electronic filing 
participant who has filed a North Carolina application 
for electronic filing, has met all the criteria for the 
electronic filing program, and has not received a 
warning letter from the Department. 

(2) Warning status - electronic filing participant who has 
been issued a warning letter dueto noncompliance 
with: this rule or the agreement signed by the 
participant. 

(3) Termination - electronic filing participant who has 
been issued a warning letter and has failed to correc^ 
the problem identified in the letter. v 



» 



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14:02 



APPROVED RULES 



(j) Refusal to Process. — Taxpayer returns transmitted by an 
applicant or former participant who has been rejected from the 
program shall not be processed by the Department. The 
taxpayers shall be notified to file paper returns. 

(k) Reinstatement. - Terminated participants may apply for 
reinstatement in the Federal/State Electronic Filing Program 
upon compliance with all requirements of the program. 

History Note: Authority G.S. 105-262; Rev. Proc. 93-8. 
Internal Revenue Bulletin 1993-2. January 11, 1993. 
Eff.Mayl. 1994: 
Amended Eff. July 1. 2000: August 1. 1998: November I. 1994. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 10 - BOARD OF CHIROPRACTIC 
EXAMINERS 

SECTION .0200 - PRACTICE OF CHIROPRACTIC 

.0203 EXAMINATIONS 

(a) Eligibility. Only those applicants who meet the 
requirements of G.S. 90-143. or in the case of reciprocity 
applicants. G.S. 90-14.^.1, and who have submitted a timely and 
complete written application pursuant to 21 NCAC 10 Rule 
.0202 shall be allowed to take the examination. 

tb) Dale of Examination. The examination shall be given 
Itwice annually. The spring examination shall commence on the 
first Saturday after the first Tuesday in June. The fall 
examination shall commence on the first Saturday after the first 
Tuesday in November. Applicants eligible for examination shall 
be notified of the exact date, time and location of the 
examination as soon as possible after their written applications 
have been approved by the Board. 

(c) National Boards. In order to take the North Carolina 
portion of the examination or otherwise demonstrate clinical 
proficiency, an applicant must first achieve a score of .^75 or 
higher on each of the following examinations given by the 
National Board of Examiners: Part I. Part II. Part III (WCCE) 
and the elective examination (termed "Physiotherapy" by the 
National Board). An applicant must then demonstrate clinical 
proficiency, either by passing the North Carolina portion of the 
examination as described in Paragraphs (f) and (g) of this Rule 
or by achieving a score of 47."^ or higher on Part IV of the 
National Board examination. 

(d) Date of Licensure. An applicant who otherwise meets all 
requirements for licensure and who submits proof of a Part IV 
score of 475 or higher shall be issued a license on the next 
examination date specified in Paragraph (b) of this Rule. 

(e) Report of Scores. The applicant shall arrange for his test 
results from any National Board Examination to be reported to 
the North Carolina Board in a timely manner. Failure to comply 

kwith this provision shall be a basis for delaying the issuance of a 
license. 



(0 Nature of Examination. The North Carolina portion of the 
examination is intended to test an applicant "s proficiency in the 
practical aspects of chiropractic and to augment the information 
submitted in his written application. It is administered orally and 
may include questions on the following subjects: x-ray; general 
office practice; and chiropractic analysis, procedure, 
examination, diagnosis and treatment. No part of the North 
Carolina portion of the examination is open-book, and no 
reference material of any kind shall be allowed in examination 
area. 

(g) Passing Grade. To pass the examination, an applicant 
must answer correctly a minimum of 65 percent of the questions 
on each subject and must also answer an average of 75 percent 
of all the questions on the examination. An appliccant who fails 
because of a deficiency in only one subject may be re-examined 
in that subject the next time the examination is given and shall 
not be required to pay another application fee. An applicant who 
fails the examination for any other reason must re-take the entire 
examination and pay another application fee. 

(h) Review of Examination Results. An applicant who has 
been denied licensure because of failing examination grades may 
request a review of his answers provided his request is made in 
writing and received by the the secretary not later than 20 days 
after issuance of the examination results. The review shall be 
limited to a re-tabulation of the applicant's test scores to make 
certain no clerical errors were made in grading. Applicants shall 
not discuss their examinations with Board members, graders or 
test administrators. 

Histon Note: Legislative Objection Lodged Eff. January 31 . 

1983: 

Curative Amended Eff. Eebruary 18. 1983: 

Authority- G.S. 90-142: 90-143: 

Eff. Februan- 1. 1976: 

Readopted Eff. Januaiy27. 1978: 

Amended Eff. Aiisnst l^ 2000: August I. 1995: December 1. 

1988:Januan- 1. 1983: October 17. 1980. 



14:2 



NORTH CAROLINA REGISTER 



July 15, 1999 



100 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. July 15. 1999. 



10:00 a.m. . at 1307 Glenwood Aye.. Assembly Room. Raleigh. NC. Anyone wishing to submit written comment on any 
rule before the Commission should submit those comments to the RRC staff, the agency, and the individual 
Commissioners by Monday. July 12. 1999. at 5:00 p.m. Specific instructions and addresses may be obtained from the 
Rules Review Commission at 9 1 9-733-272 1 . Anyone wishing to address the Commission should notify the RRC staff and 
the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Tw iddy 



Appointed by House 

Paul Powell, Chairman 

Anita White, 2"' Vice Chairman 

Mark Garside 

Steve Rader 

Georoe Robinson 



RULES REVIEW COMMISSION MEETING DATES 



July 15, 1999 
August 19. 1999 
September 16. 1999 



October 21. 1999 
November 18, 1999 
December 16. 1999 



LOG OF FILINGS 
RULES SUBMITTED: MAY 20, 1999 THROUGH JUNE 20, 1999 



agency/division 



RULE NAME 



AGRICULTURE, DEPARTMENT OF 

Standards of Identity for Frozen Yogurt 

Admission Regulations 

Admission Regulations 

Purpose 

Definitions 

Eligibility 

Use of Grants 

Availability and Amount of Grants 

DHHS 

Single Audits of Local Governments 

Audits of Hospitals 

Purchase of Service vs Financial Assist. 

DHHS/COMMISSION FOR THE BLIND 

Civil Action 
DHHS 

Benefit Levels 

DENR/MARINE FISHERIES COMMISSION 

License/Permit Denial 

Contested Case Hearinji Procedures 



RULE 


ACTION 


2NCAC9K.()214 


Amend 


2 NC AC 208 .0104 


Amend 


2 NCAC 43L .0309 


Amend 


2NCAC54.0101 


Adopt 


2 NCAC 54 .0102 


Adopt 


2 NCAC 54 .0103 


Adopt 


2 NCAC .54 .01 04 


Adopt 


2 NCAC 54 .0105 


Adopt 


10 NCAC IB .0418 


Amend 


10 NCAC IB .0419 


Amend 


10 NCAC IB .0420 


Amend 


10 NCAC 19G.0823 


Amend 


10NCAC29C .0103 


Amend 


15 NCAC 3P .0101 


.\mend 


1 5 NCAC 3P .01 02 


Amend 



101 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



RULES REVIEW COMMISSION 



)ENR/COASTAL RESOURCES COMMISSION 

Use Standards 
Specific Conditions 
Purpose 

Approval Procedures 
Specific Conditions 

DUCATION, STATE BOARD OF 

Purchasing Flexibility Exemption 
Nature of Licensure 
State Board of Education Action 
Application for Approval; Criteria 
State Board Review Stds/Appr. Actions 
Consortium-Based Prog/Innovative Prog 
Prospective Teacher Scholarship Loans 
General Information 
Credit 

Program Requirements for Licensure 
License Patterns 

Licenses for Non-Teacher Ed Graduates 
License Endorsement 
License Renewal 
Expired Licenses 
Reciprocity in Licensure 
Temporary Permit 
License Suspension and Revocation 
Criminal History Checks 
General Prov isions 
I Graduation Requirements 

Disposition of Old Textbooks 

Testing Requirements and Opportunities 

Test Administration 

Accountability Coordinator 

End-of-Course Tests 

Interscholastic Athletics 

Driver Training 

Accreditation Procedures 

Due Process Protections 

Suspension/Powers/Duties/School Eds 

General Knowledge Test/Licensed Staff 

Charter School Advisory Committee 

Detlnitions 

Complaint Procedures/Federal Programs 

Admin, of Special Education Programs 

Non-Instructional Special Ed Services 

Special Ed Assessment/Placement Proc 

Surrogate Parents/Child/Special Needs 

ConfidenIiality:Access/Special Ed Record 

Special Education Due Process Procedures 



TRANSPORTATION, DEPARTMENT OF/DIVISION OF MOTOR VEHICLES 

Branch Offices 
General Provisions 

» Office 

Courses of Instruction 
Vehicle Equipment 
Registration: Insurance: Inspection 



15NCAC7H.0309 


Amend 


15NCAC7H.1805 


Amend 


15NCAC7H.2101 


Amend 


15NCAC7H.2102 


Amend 


15NCAC7H.2105 


Amend 


16NCAC6B .0108 


Adopt 


16NCAC6C .0102 


Amend 


16 NCAC6C .010,3 


Amend 


16NCAC6C.0202 


Amend 


16NCAC6C.0205 


Amend 


16NCAC6C.0206 


Amend 


16NCAC6C.0207 


Amend 


16NCAC6C.030I 


Amend 


16NCAC6C.0302 


Amend 


16NCAC6C.0303 


Amend 


16NCAC6C.0304 


Amend 


16NCAC6C.0305 


Amend 


16 NCAC6C .0.306 


Amend 


16 NCAC6C .0.307 


Amend 


16NCAC6C.0.308 


Amend 


16NCAC6C.0309 


Amend 


16NCAC6C.03I1 


Amend 


16NCAC6C.03I2 


Amend 


16NCAC6C.03I3 


Amend 


16NCAC6C.0501 


Amend 


16NCAC6D.0103 


Amend 


16NCAC6D.0210 


Amend 


16 NCAC6D .0,^01 


Amend 


16NCAC6D.0.^02 


Amend 


16NCAC6D.0303 


Amend 


16NCAC6D.0305 


Amend 


16NCAC6E.0202 


Amend 


16NCAC6E.0301 


Amend 


16NCAC6G.0202 


Repeal 


16NCAC6G.0308 


Amend 


16NCAC6G.0309 


Amend 


16NCAC6G.0311 


Adopt 


16NCAC6G.0502 


Adopt 


16NCAC6H.0101 


Amend 


16NCAC6H.0103 


Amend 


16NCAC6H.0103 


Amend 


16NCAC6H .0106 


Amend 


16NCAC6H.0107 


Amend 


16NCAC6H .0108 


Amend 


16NCAC6H.0109 


Amend 


16NCAC6H .0110 


Amend 


R VEHICLES 




19NCAC3I .0207 


Amend 


19 NC AC 31 .0301 


Amend 


19NCAC3I .0.302 


Amend 


19 NC AC 31 .0.307 


Amend 


19NCAC3I .0401 


Amend 


19NCAC3I .0402 


Amend 



14:2 



NORTH CAROLINA REGISTER 



Julv 15, 1999 



102 



RULES REVIEW COMMISSION 



Requirements 
Requirements 
Bonds 
Probationary Period 



19NCAC3I.0501 
I9NCAC3I.0601 
19NCAC3I.0701 
1 9 NCAC 31 .0804 



STATE BOARDS/COSMETIC ART EXAMINERS, STATE BOARD OF 

Cleanliness ol Clinic Area 21 NCAC 14H .01 12 

Systems of Grading Beauty Establishment 21 NCAC 14H .01 18 



Amend 
Amend 
Amend 
Adopt 



Amend 
Amend 



< 



RULES REVIEW COMMISSION 

June 17. 1999 
MINUTES 

The Rules Review Commission met on June 17. 1999. in the Assembly Room of the Methodist Building, 1307 Glenwood Avenue, 
Raleigh, North Carolina. Commissioners in attendance were Chairman Paul Powell, Teresa Smallwood, Steven P. Rader, Jim 
Funderburk, John Arrowood, David R. Tvviddy, R. Palmer Sugg, and George S. Robinson. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster. 

The following people attended: 

Robin Pendergraft 
Lisa Thompson 
Scott Perry 
Frank Crawley 
Dedra Alston 
Julie Lohman 
Ted Sauls 
Dee Williams 
Jessica Gill 
Doug Haggett 
Cathy BriUingham 

APPROVAL OF MINUTES 



Justice 

Justice/Criminal Justice Standards 

Justice/Criminal Justice Standards 

Attorney General 

DENR 

Justice/Sheriffs' Standards 

Justice/Sheriffs" Standards 

State Board of Cosmetic Art Examiners 

DENR/Coastal Resources Commission 

DENR 

DENR 



The meeting was called to order at 10:01 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the May 20, 1999 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

15A NCAC 7H .2404: DENR/Coastal Resources Commission - The Commission approved the rewritten rule submitted by the 
agency. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

12 NCAC 9A .0103: JU.STICE/Criminal Justice Education & Training Standards Commission - This rule was not originally on the 
commission's log or agenda. However problems in other rules before the Commission led to a discussion on this rule, which covers 
definitions used by the agency of terms in its other rules. The Commission determined that the definition of "high school" is at 
variance with the Commission's certification practices. It appears that the agency actually issues certification to applicants who are 
not high school graduates within the definiii(tn, despite the restrictions in 9B ,0107 and .01 1 3. The Commission also objected to term^j 
in other rules thai were vague. If the agency chooses to add definitions for those terms in this rule, thai would satisfy thc*^ 



103 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



RULES REVIEW COMMISSION 



Commission's objections to the other rules. If they choose to submit amendments or additions to 9A .0103, the Commission has 
indicated that it will restrict its review to the amendments or additions and will not review the entire rule. 

12 NCAC 9B .0107 and .01 13: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission extended 
the period of review on these rules in order to clarify the agency's actual standards before taking any further action on these rules. 

1 2 NCAC 9B .0201 : JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. In (b) it is unclear who or what makes a "qualified assistant" (line 15). 

12 NCAC 9B .0202: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to lack of statutory authority and ambiguity. In {b)( I ) there is a provision for the division director to grant a waiver of the 
minimum hours requirement. The standard for granting the waiver is vague. There is no authority to allow a rule waiver unless there 
are "specific guidelines" set out for the agency to follow in making the waiver determination. G.S. 1 SOB- 19(6). In (a)(2). (b)(5), and 
(d)(1) it is unclear who or what constitutes "qualified" instructors. In (a)(8) it is unclear what the standards are for commission 
"approved" procedures. In (b)(6)(A) and (c)(3)(A) it is unclear what constitutes a "comprehensive" course schedule. In (b)(9) and 
(d)(3) it is unclear who are "authorized" representatives of the commission. 

1 2 NCAC 9B .0203: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to lack of statutory authority and ambiguity. It is unclear what constitutes "exceptional or emergency circumstances" for obtaining 
the waiver in (e) (lines 32-34). There is no authority to allow a waiver unless there are specific guidelines set out for the agency to 
follow in making the waiver determination. 

12 NCAC 9B .0204; JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to lack of statutory authority and ambiguity. It is unclear what constitutes "exceptional or emergency circumstances" for obtaining 
the waiver in (b). There is no authority to allow a waiver unless there are specific guidelines set out for the agency to follow in making 
the waiver determination. 



« 



12 NCAC 9B .0205: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. In (c) and (d) it is unclear what rule the school must follow in the event that there is any discrepancy between the 
contents of the rule and the BLET manuals incorporated by reference. The agency is free to require use of the manuals without 
incorporating them by reference. 



12 NCAC 9B .0206: JUSTICE/Criminal Justice Education & Training Standards Commission- The Commission objected to this rule 
due to ambiguity. The same analysis as used in the previous rule applies to (c) in this rule. The curriculum in this case is found in the 
"Basic Correction Officer Training Manual." 

12 NCAC 9B .0226: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. The same analysis as applied in 9B .0205 and .0206 applies in this rule. The reference is in (e) to the "Specialized 
Firearms Instructor Training Manual." 

12 NCAC 9B .0227: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. The same analysis as applied in 9B .0205. .0206, and .0226 applies in this rule. The rcterence is in (e). 

12 NCAC 9B .0228: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. The same analysis as applied in 9B .0205, .0206, .0226, and .0227 applies in this rule. TTie reference is in (c) to the 
"Wildlife Basic Training Manual." 

1 2 NCAC 9B .0232: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. The same analysis as applied in 9B .0205, .0206, .0226. .0227, and .0228 applies to this rule. The reference is in 

(c). 

12 NCAC 9B .0233: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. As in the previous six rules there is an incorporation by reference problem, this time in (e). 

'12 NCAC 9B .0305: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to ambiguity. It is not clear when all types of specialized instructor certifications expire. Based on the Commission's reading of 



14:2 NORTH CAROLINA REGISTER July 15, 1999 104 



RULES REVIEW COMMISSION 



rule .0304 some specialized certifications may be granted to persons who do not hold general certification. [See 9B .0304(d), (e), (f), 
and (g).] If that is so, then it is not clear how it could be set to expire with the general certification as set out in (b) and{c). 

1 2 NC AC 9C .02 1 1 : JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this r\i\m 
due to lack of necessity. It is no longer necessary to list forms and their content (unless the content has not been previously required iir 
other rules). 

12 NCAC 9C .0212: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this rule 
due to lack of necessity. It is no longer necessary to list forms and their content (unless the content has not been previously required in 
other rules). 

12 NCAC 9C .0213; JUSTICE/Criminal Justice Education & Training Standards Commission- The Commission objected to this rule 
due to lack of necessity. It is no longer necessary to list an agency's forms. 

12 NCAC lOB .0103: JUSTICE/Sheriffs" Education & Training Standards - The Commission objected to this rule due to lack of 
necessity. It does not appear that it would be within the intent of the General Assembly to deny certification to persons who completed 
high school in North Carolina but who would not be high school graduates within the meaning of .0103(6). 

12 NCAC lOB .0502: JUSTICE/Sheriffs' Education & Training Standards - The Commission objected to this rule due to ambiguity. 
This rule has the same problem with incorporation by reference ambiguity as the previous set from the Criminal Justice Education & 
Training Standards Commission. In (c) the rule incorporates by reference the Justice Academy's BLET Manual including any 
subsequent changes. It is unclear what happens if and when the manual and this rule's course requirements are not in agreement. 

12 NCAC lOB .0601 : JUSTICE/Sheriffs" Education & Training Standards - The Commission objected to this rule due to ambiguity. 
Another incorporation by reference problem. The same analysis as used in the previous rule applies to (d) in this rule. The curriculum 
is the "Detention Officer Certification Training Manual." 



16 NCAC Rules: The agency requested that consideration of these rules be postponed until the July meeting. The Commission agreed 
to do this. These rules will appear in the July log and notebook. 



«l 



21 NCAC 141 .0104: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. There is no authority for the Board to require schools to make reports. This objection applies to existing language in the 
rule. 

21 NCAC 141 .0107: Slate Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. There is no authority for the Board to refuse to allow a student to take an examination solely because a school has failed to 
make a report. In addition, there is no authority cited to require schools to make reports. This objection applies to existing language in 
the rule. 

21 NCAC I4J .0208: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to ambiguity. In (a), it is not 
clear what standards the Board will use in approving an internship program. 

21 NCAC I4J .0501: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack oi statutory 
authority, ambiguity, and lack of necessity, in (a), it is not clear what standards the Board will use in approving credit for instruction 
taken in another state if the provisions in this rule are not met. This amounts to a waiver provision with no guidelines. Paragraph (d) 
is not consistent with G.S. X8B-I3, and if it were, it wtiuld not be necessary. This objection applies to existing language in the rule. 

21 NCAC 14L .0101: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of necessity. This 
rule merely repeats the information in G.S. 88B-1 1 and is therefore not necessary. This objection applies to existing language in the 
rule. 

21 NCAC 14L .0303: State Board of Cosmetic Art Examiners - This rule was withdrawn by the agency. 

21 NCAC I4N .0113: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutor)^ 
authority. There is no authority for paragraphs (c) or (d) of this rule. G.S. 88B- 18(d) only allows the Board to set addition; 
requirements for the cosmetologist license. The statute clearly differentiates between the various types of licenses as necessary and 



105 NORTH CAROLINA REGISTER Jiilv 15, 1999 14:02 



T^ 



RULES REVIEW COMMISSION 



only the one license may require additional training. Paragraph (d) is particularly bad by shortening the number of times of failure to 
two. This objection applies to existing language in the rule. 



( 



,21 NCAC 140 .0101: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. G.S. 88B-4(a)(9) authorizes the Board to adopt rules for the sanitary management and physical requirements of cosmetic art 
schools, hut this rule goes beyond that. 

21 NCAC 140 .0104: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. As written, this rule is overly broad. There is no authority for the Board to prohibit someone from performing services for 
which they may he legally authorized to perform. 

21 NCAC 140 .0105: State Board of Cosmetic Art Examiners - This rule was withdrawn by the agency. 

21 NCAC 14P .0105: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. While G.S. 88B does establish procedures for licensing teachers, at no place does it prohibit teaching without a license or 
with an expired license. There is therefore no authority to penalize someone for doing it as this rule does in (3). 

21 NCAC I4P .01 1 1: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (2), it is not clear when a licensed teacher is required to be on duty in order to avoid this penalty. There is 
no authority to require schools to report a change in the teaching staff even though the Board has an existing rule requiring it adopted 
pursuant to previous authority now repealed. Pursuant to G.S. 88B-4(a). their authority related to schools is to approve new schools, 
adopt rules for the sanitary management and physical requirements, and establish a curriculum. Therefore there is no authority for the 
provision in (4) penalizing a school for failing to report a change in teaching staff. 

21 NCAC 14P .0112: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. Because there is no authority to prescribe what students wear, there is no authority to penalize a school for failing to enforce 
a dress code as the rule does in (6). 

k2l NCAC 14P .01 1,^: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
'authority. There is no authority for the penalties set in (2) and (.^). There is no statutory requirement for the reports or authority for 
the Board to require them by rule. 

21 NCAC I4P .01 14: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to ambiguity. In (2) and 
(3), it is not clear if these are penalties against students or schools. 

21 NCAC 14P .0116: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (b), it is not clear what is meant by "good cause" for extending the period for a licensee to make a 
correction that led to a warning citation. This amounts to a waiver or modification provision without specific guidelines. 

21 NCAC 16M .0101: State Board of Dental Examiners - The Commission objected to this rule due to lack of statutory authority and 
ambiguity. In (b). there is no authority to charge instructors the annual impaired dentist fee allowed to be charged dentists by G.S. 90- 
39(9). In (c). it is not clear what the amount of the instructor's license renewal fee is. Tliere is no authority to set fees outside 
rulemaking. 

21 NCAC 18B .0208: State Board of Examiners of Electrical Contractors - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. The provision in (b) allowing minor irregularities of information in specially arranged examination 
applications to be waived at the discretion of the Board's application review committee is a waiver provision without specitlc 
guidelines prohibited by G.S. 150B-19(6). In (c), (d), and (e), it is not clear what is meant by "within reasonably limits" and "special 
provisions." In (c)(3), it is not clear when the Board will grant prior approval. This objection applies to existing language in the rule. 

COMMISSION PROCEDURES AND OTHER MATTERS 



I 



Mr. DeLuca reported that Denise Stanford had informed him that she is completing the complaint against the Rules Review 
Commission. The commissioners should anticipate being served by certified mail in the near future. There is possibly money 
available from the contingency fund if this should occur. 

The next mcetins: will be on Julv 15. 1999. 



14:2 NORTH CAROLINA REGISTER July 15, 1999 106 



RULES REVIEW COMMISSION 



The meeting adjourned at 1 1:29 a.m. 

Respectfully submitted, 
Sandy Webster 



< 



107 NORTH CAROLINA REGISTER July 15, 1999 14:02 



CONTESTED CASE DECISIONS 






1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. 
Copies of the decisions listed in the index aiul not published are available upon request for a minimal charge by 
contacting the Office of Administrative Hearings. (919) 733-269S. Also, the Contested Case Decisions are available on 
the Internet at the following address: http://www.state.nc.us/OAH/hearings/decision/caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN. Ill 

Senior Administrative Law Judge 

FRED G. MORRISON JR. 

ADMIN IS TRA TIVE LAW JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 
Robert Roosevelt Reilly Jr. 
Beryl E. Wade 






AGENCY 

ADMINISTRATION 

i aidlaw Transit S\cs. Inc. v Kane G Dorselt. Sec'y/Dept/Adminislration 



'ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Conlrol Commission v Keyland. Inc.. T/A Cloud 9 

CRIME CONTROL AND PUBLIC SAFETY 

William Samuel McCraw v. Crime Victims Compensation Commission 
.Anson D. Looney \'- Cnme Victims Compensation Commission 

ENVIRON.MENT AND NATURAL RESOURCES 

R J Reynolds Tobacco Co \ Dept. of Environment & Natural Resources 

Division of Land Resources 

Buel B. Barker. Jr and Hubbard Realty of Winston-Salem. a NC Corp.. 
jointly and severally v. Depl. of Environment and Natural Resources, 
Di\- of Land Resources 

HEALTH AND H lUN SERVICES 

.Andrew Gainey v. t.)ilice of the Chief Medical txaminei 

.1 P Lvnch V, Department of Health & Human SerMces 

New Hope Living Centers. Enc D Lewis v Health & Human Services 

1 onnie Hemng v Department of Health l^; Human Services 

Division of Facility Services 

Delia C. Jones v. Health & Human Services, Div. of Facility Services 
Carolyn Grant v. Health & Human Services, Div, of Facility Services 
Sarah Frances Alford v. Health & Human Svcs.. Div. of Facility Svcs. 

Division of Social Serx'ices 

Joanna Price v. Caldwell County Social Services 

Cliilil Support Enjurcemenl Seiln'ii 
J"homas Ashley Stewart II v. Department of Health & Human Services 
lobert M. Chandler Jr. v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99DOA0102 


Morrison 


06/11/99 


14:02 NCR 115 


98 ABC 1099 


Overby 


01/17/99 




98CPS 1626 


Momson 


06/09/99 




99 CPS 0096 


Morrison 


05/25/99 




98EHR \}\5 


Wade 


06/04/99 


14:02 NCR 110 


98EHR 14.S7 


Morrison 


06/09/99 





98DHR 1761 


Owens 


99DHR0I 11 


Reillv 


99DHR0I70 


Owens 


99DHRO."v50 


Reilly 


98DHR 1680 


Gray 


99DHRni45 


Mann 


99 DHR 0220 


Phipps 


99DHRO520 


Momson 


99 CRA 0628 


Reillv 


98CSE 1789 


Phipps 



05/12/99 
05/25/99 
05/25/99 

06/0.V99 



06/09/99 
06/11/99 
06/08/99 



06/10/99 



06/14/99 
05/27/99 



14:01 NCR 69 



14:2 



NORTH CAROLINA REGISTER 



July 15, 1999 



108 



CONTESTED CASE DECISIONS 



AGENCY 

Billy J. Young v. Department of Health & Human Sei-vices 
Beverly K Thompson v. Depanment of Health c51 Human Sei^ices 
Michael L. Timmer \ . Depannieni of Health & Human Services 
Elizabeth F, West v. Department of Health & Human Services 
Gerald Scott Saucier v. Department of Health & Human Services 
Lawrence Gordon Soles v. Department oi Health <& Human Services 



CASK 




DATE OF 


NUMBER 


ALJ 


DECISION 


9')CSE0174 


Reilly 


06/14/99 


99 CSE 0415 


Reilly 


06/14/99 


99 CSE 0437 


Wade 


06/08/99 


99 CSE 045 1 


Morrison 


05/25/99 


99 CSE 0576 


Mann 


06/09/99 


99 CSE 0581 


Momson 


06/09/99 



PIBLISHED DECISION 
REGISTER CITATION 



« 



\ 



JUSTICE 

Alarm Systems Licensing Board 

Terry Allen Brickey v. Alarm Systems Licensing Board 
Bnan Anthony Barttmac v. Alarm Systems Licensing Board 
Melvin T. Lohr v. Alarm Systems Licensing Board 
Bradford D. Penny v. Alarm Systems Licensing Board 
Benny L, Shaw v Alarm Systems Licensing Board 

Education and Training Standards Division 

Rock Steven Edwards \ . Criminal Jusnce Ed- & Training Stds. Coinm. 
Anthony Scott Hughes v Shenffs' Ed. & Training Standards Comm. 
Emma J Kiser v. Shenffs' Ed. & Training Standards Comm. 
Sherry Davis Kenney v. Criminal Jusnce Ed. & Training Stds. Comm. 

Private Protective Ser\ices Board 

Michael Lynn Arter \ Private Protective Services Board 
Jeffrey S. Moore v. Pnvate Protective Services Board 
Bonnie Mane Keller v. Pnvate Protective Services Board 
Ronald E. Sulloway v. Pnvate Protective Services Board 
Raymond Solomon v. Private Protective Services Board 
Charles E. Evans. Jr. v. Pnvate Protective Services Board 
William E. Ellis, Sr. v Pnvate Protective Services Board 

PUBLIC INSTRUCTION 

S H by and through her guardian and custodian. H.H and H H v. 

Henderson County Board of Education 
S.L-F. and S.F.F. v. Charlotte-Mecklenburg Board of Education 

STATE PERSONNEL 



99 DOJ 0097 


Wade 


05/21/99 


99 DOJ 0487 


Momson 


05/25/99 


99 DOJ 0490 


Momson 


05/24/99 


99 DOJ 0522 


Momson 


06/08/99 


99 DOJ 052.1 


Momson 


06/08/99 


98 DOJ 0906 


Chess 


05/13/99 


98 DOJ I5.W 


Chess 


05/12/99 


98 DOJ 179.1 


Gray 


06/07/99 


99 DOJ 0067 


Wade 


06/08/99 


99 DOJ 0262 


Wade 


05/25/99 


99 DOJ 0488 


Momson 


05/24/99 


99 DOJ 0491 


Momson 


05/24/99 


99 DOJ 049.1 


Momson 


05/24/99 


99 DOJ 0494 


Mortison 


05/25/99 


99 DOJ 0496 


Momson 


05/25/99 


99 DOJ 0527 


Momson 


06/08/99 


98EDC 1124 


Mann 


06/11/99 


98EDC1649 


Mann 


06/04/99 



« 



Correction 

E. Wayne Irvin v. Department of Correcnon 

Maydean L. Taylor v Department of Correction 

Ann McMillian v. Morrison Youth Institution. Department of Conection 

Harry E. Kenan v. Capt. BE. Lewis, Polk Youth Institution 

Richmond Fulmore v. Department of Correction, Wake Correctional 

Jerry D. Crawford v. Department of Correction 99 OSP 0577 



94 DSP 1791 


Momson 


0.5/18/99 


14:01 NCR 


60 


98 OSP 1272 


Chess 


05/14/99 






98 OSP 1275 


Chess 


05/12/99 






99 OSP 0257 


Phipps 


06/07/99 






99OSP0416 


Mann 


06/04/99 






Reilly 


06/02/99 









Employment Security Commission 

Russell J Suga v. Employment Security Commission 



96 OSP 1122 



Reilly 



05/26/99 



Johnston County 

l.ili Romaine Lee \ County of Johnston 



99 OSP 04,56 



Momson 



06/02/99 



Justice 

Thomas Michael Chamberlm x. Justice, Justice Academv 



99 OSP 0308 Phipps 



06/11/99 



Transportation 

Larry R. Lane v. Department of Transportation 99 OSP 0105 Mann 06/1 1/9Q 

Ronald Roberson v. Dept. of Transportation, Right-of-Way Branch 99OSP0142 Mortison 



06/08/99 



UNIVERSITY OF NORTH CAROLINA 

Stephanie A. Payne \ L'NC Hospitals 



99 UNC 0375 



Momson 



06/21/99 



I 



Conscilidated Cases, 



109 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



CONTESTED CASE DECISIONS 



iTATE OF NORTH CAROLINA 



rOUNTY OF FORSYTH 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 EHR 1315 



.J. REYNOLDS TOBACCO COMPANY 
Petitioner, 



«JORTH CAROLINA DEPARTMENT OF ENVIRONMENT 
^ND NATURAL RESOLRCES 

Respondent. 



RECOMMENDED DECISION 



This contested case came on tor hearing before the Honorable Beryl E. Wade, Administrative Law Judge on February 23-24, 
1999 in Greensboro. North Carolina and March 8, 1999 in High Point, North Carolina. 

APPEARANCES 

The Petitioner, R.J. Reynolds Tobacco Company ("Reynolds"), was represented by William E. Latham II, Esquire, of 
Womble Carlyle Sandridge & Rice, and Peter H. Ramm, Senior Counsel for R.J. Reynolds Tobacco Company. 

The Respondent. North Carolina Department of Environment and Natural Resources ("DENR" or "the Agency"), was 
epresented by Nancy E. Scott, Esquire, Assistant Attorney General. 

ISSUES 

Whether Petitioner has met its burden of proof by establishing that the Respondent either: acted erroneously; acted arbitrarily 
ir capriciously; exceeded its authority or Jurisdiction; or failed to act as required by law or rule when Respondent denied Reynolds" 

1^998 Application for tax certification of equipment used in Reynolds" reconstituted tobacco process, which Petitioner had submitted to 
fie Solid V/aste section of the Department of Environment and Natural Resources pursuant to N.C. Gen. Stat. § l50B-2(8a). 
FINDINGS OF FACT 
1. Chapter 764 of the 1973 North Carolina Session Laws, effective January 1, 1976, provides certain tax benefits for capital 

investments in facilities and equipment used exclusively for resource recovery or recycling of or from solid waste, including 
exclusion of real and personal property from the local city and county ad valorem tax base, deduction of the value of the 
facilities and equipment from the value of property upon which the corporate franchise tax is levied, and rapid amortization of 
the construction, purchase and installation cost of the facilities, resulting in increased deductions from corporate taxable 
income. 

Section One ( I ) of the Legislation amended the Solid Waste Management article of the Public Health Chapter of the North 
Carolina General Statutes by directing the Department of Human Resources to develop and promulgate standards for 
qualification as recycling or resource recovery facilities or equipment, and to certify as qualifying applications which meet the 
established standards. 

3. The Division of Waste Management was subsequently transferred from the Department of Human Resources to the 
Department of Environment and Natural Resources; it is the same agency which has administered the tax certification statutes 
and rules promulgated thereunder since the mception of the program in 1976. 

4. In the 1980s, DENR encouraged taxpayers to submit applications to qualify for its tax certification program. 

In the early 198()s. Reynolds discussed with DENR representatives whether its reconstituted tobacco process ("the G-7 
process") would qualify for tax certification. 

On November 8, 1982, Petitioner R.J. Reynolds Tobacco Co. submitted a request to the Respondent Agency for tax 
certification for a resource recovery facility and equipment in Building 603 at its Whiiaker Park manufacturing facility in 
Winston Salem. North Carolina. The application included the building itself, approximately two acres of land area covered 
by the building, and equipment located in the building which was used to produce "reconstituted sheet tobacco" from tiibacco 



14:2 



NORTH CAROLINA REGISTER 



July 75. 1999 



110 



CONTESTED CASE DECISIONS 



stems, scraps and dust. Reynolds" application stated tiiat the "operation reclaims tobacco materials which were previously! 
discarded and processes it to a material which is used in the manufacture of tobacco products." TTie application included al 
short description of the "G-7" (stems and scraps) and the "G-9" {tobacco dust) tobacco reconstitution processes and a one- 
page process flow chart depicting the process. 

7. Mr. Julian Foscue. now the Western Area Supervisor for the Solid Waste Section, testified that in 1982 he was the waste 
management specialist who inspected the facility for Respondent Agency. Mr. Foscue testified that at that time the Agency, 
in determining whether a facility met the standards for a solid waste resource recovery or recycling facility, relied upon the 
declaration of an applicant that it had formerly wasted the material which it claimed to be recovering or recycling. The 
Agency did not look beyond an applicant's declaration. 

8. On December 2, 1982. Respondent Agency issued Reynolds a tax certification covering the building, the land and the 
equipment listed in the application. 

9. Reynolds applied for and received tax certifications for new equipment purchased and installed in Building 60.'^ on eight 
different occasions between 1986 and 1995. Each application included a cover letter slating that the company has 
manufacturing facilities which are tax certified as resource recovery facilities; attached to each letter was a list of items which 
had been installed or transferred to these facilities since the last tax certification. These applications did not include any 
reference to the materials from which resources were recovered, nor did they include any description of the process in which 
the equipment was used. 

10. For each of the nine Reynolds' applications, the Solid Waste Section of DENR conducted inspections of the Reynolds" 
reconstituted tobacco processing operations. 

1 1. From 1982 to 1995, the Solid Waste Section of DENR determined after inspection that the equipment exclusively used in the 
G-7 process qualified for tax certification as recycling or resource recovery equipment. 

12. Mr. Foscue testified that applications for tax certification subsequent to the 1982 application were approved on the basis of 
the 1982 certification. He testified that he had had doubts in 1995 about whether the tobacco stems, scrap and du^H 
reconstituted by Reynolds actually were solid waste, and that he had expressed such doubts to his supervisor Philip Prete. "W 

13. Mr. Prete testified that Mr. Foscue had expressed reservations to him about Reynolds' application in 1995, but that he had 
issued the tax certification on the basis of past certifications, without doing further research into the nature of the tobacco 
materials or the process wherein the equipment claimed for certification was used. 

14. Prior to its denial of Reynolds' 1998 tax certification. Respondent had denied a tax certification request from another 
company for equipment or facilities which recover tobacco stems, scrap and dust. Also prior to its denial of Reynolds' 1998 
application. Respondent had received an inquiry from an accounting firm on behalf of a tobacco manufacturer, asking 
whether equipment or facilities for processing tobacco stems and dust into tobacco products would qualify under the tax 
certification program. The Agency's response to the inquiry was that facilities and equipment would not qualify because the 
stems and scrap were tobacco and not solid waste. 

15. On April 20. 1998, Respondent Division of Waste Management received an application for tax certification of equipment 
installed by Reynolds in Building 60.-5 during 1997. with a total installed cost of SI6. 6.^4. 265. The application included only 
a list of equipment for which certification was sought; there was no information about the manufacturing process or the 
materials processed therein. The application cover letter from Mr. Robin Wilson stated that Building 60.3 had been certified 
as a resource recovery facility. 

16. After indicating by telephone to Mr. Wilson that the application could not be approved because the tobacco materials 
processed in the G-7 process were not solid waste. Mr. Prete wrote Reynolds a formal letter of denial on September 4. 1998. 
The denial is the subject of this contested case. The letter staled that the equipment and facilities submitted for consideration 
do not qualify for special lax treatment under the tax certification program because the process described upon the ,\gency"s 
inquiry involves the recovery of materials which are not solid waste. "In general, these materials are the raw materials of 
production or they are by-products that were not discarded or otherwise treated as waste." 

17. The denial letter also referred to the process as involving the recovery of material that is reintroduced directly hack into thW I 
prt)cess from which it originated ("home scrap"). During a later meeting with Mr. Wilson and Mr. George Lamb of Reynolds 



111 NORTH CAROLINA REGISTER July 15, 1999 14:02 



CONTESTED CASE DECISIONS 



to discuss the denial of tax certification, Mr. Prete learned that the tobacco stems, scrap and dust came from the tobacco 
stemming process performed at an off site stemmery. Not having been generated during the tobacco manufacturing processes 
at Reynolds Whitaker Park complex, the tobacco materials were not categorically "home scrap", but simply parts of the 
I tobacco leaves which Reynolds purchased at auction for manufacture of tobacco products. 

18. On September 30. 1998, Reynolds tiled a petition for a contested case hearing asserting that DENR improperly denied 
Reynolds" request for tax certification of a tax exemption on recycling or resource recovery equipment used in the G-7 
process. 

19. Reynolds" appeal of DENR's September 4, 1998 denial was timely made within thirty (30) days. 

20. Reynolds buys tobacco leaves at auction at a certain price per pound. The tobacco is sent to a stemmery, where the midribs 
(stems) are separated from the lamma portion of the leaf. The separation process also generates small scraps of lamina and 
very fine scraps of lamina which the company calls tobacco "dust". 

21 . Stems comprise approximately twenty to twenty-five percent of the weight of tobacco purchased at auction. 

22. The stems, scraps and fines (dust) are separated, dried, and bundled or packed into containers labeled with the grade, type 
(fiue-cured, burley, Maryland, etc.) and size of tobacco and are delivered to Reynolds to be aged and stored. Lamina strips 
are also dried and placed in containers labeled with the grade, type and size of tobacco and sent to Reynolds for aging and 
storage. Reynolds inventories all of the tobacco in its aging and storage facilities, including the tobacco stems, scrap and 
dust. 

23. When tobacco is removed from storage to the manufacturing facilities, lamina strips are sent to one processing facility, where 
they are blended, sized, moisture adjusted, treated with fiavorings, and some of them are expanded. Tobacco stems, scrap and 
dust are sent to another processing facility for reconstitution as sheet tobacco. Both the processed strips and the reconstituted 
sheet tobacco are shred for blending together as cigarette filler, which is then manufactured into cigarettes. 

1 24. Stems, scrap and dust are blended for the desired blend of types of tobacco prior to processing in the G-7 tobacco 

reconstitution process. Tobf ceo extract is extracted during the pulping process, concentrated and mixed with tobacco extract 
produced in the G-9 process from tobacco dust and scrap cigarette filler material. 

25. The G-7 tobacco pulp is ammoniated. rolled into sheets, and dried. Tobacco extract is applied to the sheet, as well as 
flavorings and humectants. 

26. The tobacco blend and formula for Reynolds" reconstituted tobacco varies, depending upon the brand of cigarette in which it 
is designed for use. 

27. Reconstituted tobacco filler is included in almost every brand made by Reynolds in proportions up to about twenty percent. 

I. Reconstituted tobacco is a major tool for designing cigarettes with lower lar and nicotine content. Lower tar has been 

demanded by the smoking public for health reasons. 

29. In addition to the stems separated from the leaf tobacco purchased by Reynolds at auction. Reynolds imports tobacco stems 
purchased overseas in order to keep up with the company"s production requirements for reconstituted tobacco. 

30. Reynolds uses approximately seventy million pounds of tobacco stems, scrap and dust per year to produce reconstituted sheet 
tobacco for use in its own tobacco products. Reynolds currently discards millions of pounds of tobacco waste materials every 
year in state landfills. 

31. Reynolds has recently begun advertising and selling reconstituted tobacco to other manufacturers of tobacco products. 
Reynolds also performs "toll" manufacture of reconstituted tobacco for other tobacco product manufacturers, using tobacco 
"by-products" - stems, scrap and dust - provided by the customer. 

^32. There is no evidence that Reynolds has discarded the tobacco stems, scrap and dust that is carefully collected, separated, 

graded, labeled, bundled or packed into containers, aged, stored, inventoried and blended belore it is reconstituted into sheet 
tobacco. 



14:2 NORTH CAROLINA REGISTER Jiilv 15, 1999 112 



CONTESTED CASE DECISIONS 



33. Reynolds purchases tobacco leaves as a commodity in the market for manufacture into tobacco products. All portions of the 

leaves, including midribs (stems) and the fine lamina particles broken off during the stemming process (scraps and dust) are 
processed for manufacture into tobacco products. 



34. Prior to reconstitution, the tobacco stems, scrap and dust have not served the original intended use of tobacco leaves, which 

the manufacture of tobacco products, and are not generally discarded. 



I 



35. The evidence shows no intent on the part of Reynolds to discard the tobacco stems, scrap and dust, which the company 
plainly wants to utilize for production of sheet tobacco. 

36. Reynolds G-7 process includes equipment that is exclusively and integrally used to transform tobacco scrap, stems and dust 
into reconstituted tobacco sheet. The G-7 process is not "recycling" as defined by N.C. Gen. Stat. § 130A-290(35). The 
facilities and equipment exclusively used in the G-7 process do not constitute a "recycling facility" as defined by 15A NCAC 
13B.15()3. 

37. Although Reynolds" employees testified that the company discards some five million tons of tobacco waste per year, that fact 
is not probative of whether the tobacco stems, scrap and dust which are processed into reconstituted sheet tobacco come 
within the statutory definition of solid waste. Tobacco materials are discarded because they are contaminated or spoiled. The 
sand content may be too high, for example, or some stems may mold before use. Dust from the air filtering system installed in 
the manufacturing facilities is disposed because, in addition to tobacco dust, the dust contains all of the other filtered from the 
air. Residual solids from the G-9 extraction process arc also disposed by Reynolds. 

38. Reynolds has denied that it is "waste material" in the commonly understood sense of the term, and has not informed its 
customers that Reynolds' brands of cigarettes contain waste materials. 

39. Reconstitution of tobacco stems, scrap and dust for use in manufactured tobacco products has been a widespread practice 
throughout the American tobacco industry for many decades. 



40. The typical American blend cigarette contains approximately twenty-two percent reconstituted tobacco. 



n 



41. Reynolds began commercially producing reconstituted tobacco from tobacco stems, scrap and dust in the early 1950's. It is 
economical for Reynolds to utilize as much of the tobacco it has purchased in its products as possible. 

42. Reconstituted tobacco is integral and necessary to the production of Reynolds" tobacco products. Reconstitution provides an 
opportunity to modify the tobacco both physically and chemically, and to improve consistency and uniformity. The 
distinguishing characteristics of each brand of cigarettes designed and manufactured hy Reynolds are achieved in large 
measure through the use of reconstituted tobacco. 

43. Reynolds" witness George Lamb stated that the tax incentives for recycling and resource recovery of or from solid waste did 
not determine whether Reynolds operated the G-7 reconsliluied tobacco process and acknowledged that the company would 
continue lo operate the prt)cess without the tax certification program. 

CONCLUSIONS OF LAW 

1 . The parties are properly before the Office of Administrative Hearings, and OAH has jurisdiction to hear this contested case 
challenging denial of an application for tax certification by Respondent Department of Environment and Natural Resources. 

2. Chapter 764 of the 1975 Session Laws, effective January 1, 1976. providing exemption from local property tax and 
deductions from State corporate franchise and income taxes for facilities and equipment which recycle solid waste or recover 
resources from solid waste, was adopted upon the recommendation of the Commission for the Study of Solid Waste 
Recycling. The Commission Report recommended tax incentives for such capital investments because of the marginal 
economics of recycling and resource recovery. 

3. A statute which provides exemption from taxation is strictly construed against the taxpayer. In re Clayton-Marcus Co. . 28|t 
N.C. 215. 210 S.E.2d 199 (1974); In re Certain Tobacco Owned by R.J. Reynolds Tobacco Co. , 52 N.C. App. 299. 27* 
S.E.2d 575 (1981). 



113 NORTH CAROLINA REGISTER July 15, 1999 14:02 



CONTESTED CASE DECISIONS 



i. 



J 



Solid Waste is defined at N.C.G.S. § 130A-290(35) as "any hazardous or nonhazardous garbage, refuse or sludge from a 
waste treatment plant, water supply treatment plant or air pollution L'ontrol facility . . . and other material that is either 
discarded or is being accumulated, stored or treated prior to being discarded, or has served its original intended use and is 
generally discarded . . ." This definition is consistent with and virtually identical in every pertinent respect to the federal 
definition of solid waste at 42 USC §6903. Federal case law holds that "solid waste" is limited under the statute to materials 
that are "discarded" by virtue of being disposed of. abandoned, or thrown away. Eg. American Mininii Congress y. EPA . 824 
F.2d 1 177. 26 ERC 1.345 (D.C. Cir. 1987). 

5. The burden of proof is upon the Petitioner to show that the Respondent either: acted erroneously; acted arbitrarily or 
capriciously; exceeded its authority or jurisdiction; or failed to act as required by law or rule when Respondent denied 
Reynolds" 1998 application for tax certification, which Petitioner had submitted to the Solid Waste section of the Division of 
Waste Management. DENR. 

6. Respondent reevaluated the application of the definition of solid waste to the tobacco materials used in Reynolds' 
reconstituted tobacco operations. It is within the statutory authority of Respondent to determine whether the standards for tax 
certification have been met. In making this determination. Respondent must first determine whether it is actually solid waste 
which is being recovered or recycled in an applicant's facility. 

7. Respondent reasonably concluded that the tobacco stems (midribs), scrap and dust (fine leaf particles) were part of the 
tobacco leaves purchased by Reynolds for the manufacture of tobacco products. Respondent reasonably concluded that said 
portions of the leaves had not served their original intended use and were neither discarded nor generally discarded by 
Reynolds. 

8. Tobacco scrap, tobacco stems and tobacco dust used in the G-7 process are not "solid waste" within the meaning of N.C. Gen. 
Stat. § L30A-290(.35). 

9. Agency rules do not require inspection of a facility when the application or other infomiation discloses that solid waste is not 
being recovered or recycled at the facility. 

1 0. Petitioner has failed to establish that Respondent, in reevaluating the application of the law which Respondent implements to 
the facts of Reynolds' tobacco reconstitution process, exceeded its authority or jurisdiction, acted erroneously, failed to use 
proper procedure, acted arbitrarily or capriciously or failed to act as required by law or rule. 

RECOMMENDED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law. it is hereby recommended that Respondent's denial of 
Petitioner's 1998 application for tax certification be upheld, and that a final agency decision be made in the contested case affirming 
the denial. 

NOTICE 

The final decision in this contested case shall be made by the respondent. Each party has the right to file exceptions to the 
recommended decision and to present written arguments to the agency. The agency will serve a copy of the final decision on all the 
parties, the attorneys of record and the Office of ,Administrati\e Hearings. 

This the 4" dav of June. 1999. 



Ber>'l E. Wade 
Administrative Law Judse 



14:2 NORTH CAROLINA REGISTER July 15. 1999 114 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 DO A 0102 



i 



I 



LAIDLAVV TRANSIT SERVICES, INC. 
Petitioner, 



KATIE G. DORSETT, SECRETARY OF THE NORTH 
CAROLINA DEPARTMENT OF ADMINISTRATION 

Respondent. 



RECOMMENDED DECISION 



THIS CAUSE coming on to be heard before the undersigned Administrative Law Judge on April 29 and on May 5, 1999: and 
Petitioner, being represented by George G. Hearn and Reed J. Hollander, attorneys, Johnson, Mercer. Hearn & Vinegar, PLLC, 
Raleigh; and Respondent being represented by Terry White, Assistant Attorney General, N.C. Department of Justice, Raleigh; and 
based upon the stipulations, testimony and documentary evidence, the undersigned Senior Administrative Law Judge makes the 
following Findings of Fact, Conclusions of Law, and issues the following Recommended Decision. 

FINDINGS OF FACT 

\. North Carolina Slate University ("NCSU") maintains a fixed route transit service for the NCSU campus and 

adjoining area under the name of Wolfline Transit Service. 

2. Laidlaw Transit Services, Inc. ("Laidlaw") is the current provider of the Woltline Transit Service through a contract 

ending August 15, 1999. 



3. On or about May 6, 1998, North Carolina State University ("NCSU"), through its Purchasing Department, issued 

Request for Proposal No. ROOIO.^ ("RFP") seeking service providers to perform the Woltline Transit Service for the NCSU campus to^ 
besin August 16, 1999. 



I 



4. David A. Jones is and was during 1998 the Assistant Purchasing Administrator of the Division of Purchase and 
Contract of the Department of Administration ("DOA"). 

5. NCSU's Purchasing Department amended the RFP by issuing Addendum No. I May 27, 1998 and Addendum No. 2 
June 8, 1998. The purpose of the Addenda was to answer questions in order to clarify the RFP. 

6. During 1998. David A. Jones became familiar with the RFP during the course of his regular work. Prior to May 6, 
1998, NCSU informed the Division of Purchase and Contract that it was about to solicit proposals for the Wolfline Transit Service. 

7. Prior to May 6. 1998. NCSU asked the Department of Administration ("DOA") and its Division of Purchase and 
Contract to look at the proposed RFP. and later, to attend the pre-proposal conference, and to look at NCSU's evaluation and 
recommendation, and to give NCSU authorization for the award of the contract. 



8. David Jones reviewed the draft of the RFP for completeness, clarity and preciseness and that areas in the RFP were 
not restrictive and to determine that its provisions would not cause some companies to be excluded. 

9. A mandatory pre-proposal meeting was held on June 9, 1998. David Jones was present. At this June 9, 1998, 
meeting, David Jones stated, "If there is somebody not responding adequately, accurately, to how they're [going to] meet the 
requirement, you don't ever get to see their costs. Our job is to get the lowest one. meeting the specs. I'm not going to make that 
easy." 



10. Addendum No. .1 to the RFP was issued by NCSU's Purchasing Department on June I I. 1998. Among other things 
this Addendum amended the cost proposal instructions on page 28 of the RFP. 

1 1. David Jones reviewed the Addenda to the RFP before ihey were issued by NCSU. 



I 



115 



NORTH CAROLINA REGISTER 



July 15, 1999 



14:02 



CONTESTED CASE DECISIONS 



12. Seven contractors, including TCT Transit Services. Inc. ("TCT") and Laidlaw Transit Services, Inc. ("Laidlaw"), on 

or about July 1. 1998. submitted proposals to NCSU in response to RFP No. 0010.^. 

II 13. The proposal submitted by each contractor was in two parts, containing, as required, a technical proposal and a 

sealed cost proposal. 

14. NCSU's Transportation Department began evaluating the technical proposals sometime alter July 1, 1998. 

15. On September 4, 1998. employees of NCSU's Transportation and Purchasing Departments met with David Jones at 
the North Carolina Department of Administration to discuss the technical re\iew process. 

16. Through discussions with those employees of NCSU who were reviewing the proposals of contractors in response to 
the RFP. David Jones was aware that a number of the proposals to the RFP did not name a Road Supervisor. 

1 7. Da\id Jones responded to the concern of NCSU relative to the lack of identification of a road supervisor in certain 
proposals by informing the reviewing employees that NCSU could operate on the assumption that the particular proposer could 
provide the element of service. 

1 8. During the September 4, 1998, meeting, David Jones told the NCSU employees, "The things that the vendors have 

not pro\ ided [in their proposals], that you have listed (bulleted) under each vendor, we take the assumption that they can provide and 
they have stood silent on those issues. The fact that they are in our RFP and each vendor has read the RFP and responded to the RFP, 
leads us to believe that they can meet those areas." 

19. After its review, NCSU's Transportation Department determined that TCT's technical proposal and Laidlaw' s 
technical proposal, along with three other proposals, were in "substantial compliance" with the RFP. NCSU requested permission of 
David Jones to open the cost proposals of five of the seven contractors who were in "substantial compliance." 

20. David Jones disagreed with the request of NCSU to exclude from the cost proposals to be opened those from the 
emaining two contractors. Progressive Transit Services and Intelitran. David Jones told NCSU that it could only open cost proposals 
fall seven vendors' cost proposals were opened. 

2 1 . Subsequent to its review of the technical and cost proposals, NCSU made a recommendation that the Woltline 
contract should be awarded to TCT. This recommendation was made to David Jones, for approval or other action. 

22. David Jones received this recommendation for award from NCSU, along with copies of the RFP. of all se\en RFP 
responses, and of the cost proposals and cost calculations made by NCSU. 

23. Although the term "substantial compliance" is not defined in the General Statutes or in any DOA rule, "substantial 
;ompliance" was the term used by David Jones to measure whether TCT's technical proposal and cost proposal met the requirements 
of the RFP. 

24. DOA Administrati\e Rule 1 NCAC 5B.0301(3)(b) is the administrative rule governing the authorization and award 
by the Secretary of DOA through the State Purchasing Officer ("SPO"). 

25. Pursuant to rule 1 NCAC 5B .0301 (3)(b) David Jones, on behalf of DOA. conducted an independent review of the 
recommendation by NCSU to award the contract under the RFP k) TCT. 

26. David Jones conducted an independent review of TCT's technical proposal to determine whether it was in 
"substantial compliance" with the technical portion of the RFP. 

27. David Jones determined, after his review of TCT's technical proposal, that the technical proposal was in substantial 
compliance with the RFP. 



I 



28. David Jones conducted an independent review of TCT's cost proposal and NCSU's calculations of total costs, to 

etermine if TCT was the lowest cost bidder. 



14:2 NORTH CAROLINA REGISTER July 15, 1999 116 



CONTESTED CASE DECISIONS 



29. David Jones determined, alter his review of TCT's cost proposal and NCSU's calculations of total cost, that TCT 
was the lowest cost bidder. 

30. David Jones approved the recommendation of NCSU to award the Woifline transit service contract to TCT. m 

31. The RFP provides in part: "if the technical proposal fails to meet the university's requirements as outlined in this 
RFP, the respective cost proposal will remain sealed and a contractor will not be considered further for award of this contract." 

32. The RFP on page 10 requires the following with respect to the position of road supervisor: 

"The contractor must identify a full time road supervisor who has performed well in previous jobs. This road 
supervisor must have at least three (3) years recent experience in supervising on-street, fixed-route transit operations 
that operate at minimum of 50,000 service miles annually. Road supervisor must have adequate managerial 
experience in public or private enterprises supervising a multi-culture workforce. This person's primary 
responsibility will be the assurance that the buses meet the requirements as outlined in this RFP." 

33. The RFP on page 13, under the sub-heading "Bus Maintenance", requires that in its proposal "the contractor must 
provide evidence (i.e. street address, lease/ownership documentation, maps, and/or photographs) that they will procure the facilities 
necessary to accommodate operations of the service as outlined in this R¥V. Facilities must include administrative offices, 
maintenance facilities, and bus storage areas, and be available in adequate time to start Woltline service." 

34. The RFP on Page 18 contains a checklist for a technical proposal response that informs a proposer that "to be 
considered, technical proposals must contain all of the following: . . . 'management and staffing plan with management resumes' . . . 
and 'operation facilities, including maintenance facility, documentation'." Page 18 of the RFP also provides this statement: "Note: a 
negative response to any of the above items will cause your proposal to he rejected." 

35. The proposal submitted by TCT Transit Services, Inc. did not identify a full-lime road supervisor as required by the 
RFP on page 10. Instead, TCT's proposal stated "we will recruit road supervisors locally, including from the incumbent work force." 

36. TCT's proposal did not provide evidence, i.e. street address, lease/ownership documentation, maps and/o^' 
photographs, that it would procure the facilities necessary to accommodate operations of the transit service as required by the RFP, 
page 13. Instead. TCT provided in its response a drawing of a hypothetical facility and stated, "we have been unable to finalize a lease 
at this time. However, since the need is over a year away, we are confident that we will obtain a facility within a three mile radius of 
the University." 

37. The RFP. in Section 27, page 25, required contractors to provide certain minimum levels of commercial insurance 
coverage, including: 

A. "The Contractor shall provide and maintain Worker's Compensation Insurance, as required by the laws of 

North Carolina, as well as employer's liability coverage with minimum limits of $15(),()t)().0() . . . ." 

b, "Automobile Liability Insurance, to include liability coverage, covering all owned, hired and non-owned 

vehicles, used in connection with the contract. NCSU must be named as an additional insured in the policy. 
The minimum combined single limit shall be $5,000,000.00 bodily injury and property damage; 
$5,000,000.00 uninsured/undcr-insured motorist; and $1,000.00 medical payment." 

38. TCT's proposal, at pages 14a and 14b. includes a "Certificate of Liability Insurance." The information in the 
Certificate of Liability Insurance differs from the RFP requirements in the following respects: 

A. It does not show any Workers Compensation coverage. 

B. It shows only $100,000 employer's liability coverage. 

C. It does not show any uninsured/under-insured motorist coverage. 



I 



I 



117 NORTH CAROLINA REGISTER July 15, 1999 14:02 



CONTESTED CASE DECISIONS 



39. Page 21 of the RFP is an Execution ot Proposal form, which includes a phrase stating. "The potential contractor 
Igrees to the conditions set forth in this Request for Proposal with no exceptions." Contractors were required to mark an "x" next to 

is phrase and the other phrases and sign the page to indicate agreement with the terms. 

40. This Execution of Proposal form is standard in RFPs, although certain provisions may be modified in different cases. 

41. There are no other statements in the RFP that provide a basis for David Jones" position that a vendor can remain 
ilent on a direct request for information in the RFP, and still be considered in substantial compliance, except for the Execution of 
'roposal page. 

42. The position of DOA is that once a contractor checks the Execution of Proposal page and signs it. the reviewer of the 
)roposal can rely on that Execution of Proposal page in the absence of specific responses to requests for information in the RFP. 

43. David Jones, acting on behalf of DOA, determined that because TCT signed the Execution of Proposal page. TCT 
igreed to all the requirements of the RFP. including those regarding the identity of its road supervisor, the evidence of a maintenance 
acility. and the required insurance coverages, and therefore concluded TCT's proposal was nevertheless in "substantial compliance" 
vith the RFP. 

44. Vendors are required to respond adequately and accurately to an RFP. 

45. David Jones stated that the RFP requires a person responding to the RFP to identify a person with required 
xperience levels as a Road Supervisor. 

46. TCT's response does not indicate a person with the qualifications called for to fulfill the road supervisor position. 

47. David Jones testified that "if a statement |in the RFP] indicates that you will be rejected if you don't respond in a 
certain way, you know you have to specifically respond to that." 

48. Subsequent to NCSU's technical review, and following David Jones' decision and directions to NCSU regarding the 
pening of all proposers' cost proposals. NCSU opened cost proposals of all seven contractors, including two whom NCSU did not 

[consider to be in "substantial compliance." 



I#3. 



49. The RFP instructions arc set forth at pages 28 and 29 of the RFP. These instructions were amended by Addendum 

50. The RFP instructions regarding Cost Proposals, as amended by Addendum #3. state in relevant part: 

(1) All contractors must complete and submit the attached Cost Proposal Worksheet to be considered . 
. . Contractors are asked tt> supply the following for each item on the Cost Proposal Worksheet; 

A. "1999-2000 Cost": This represents the proposed unit cost of each item to be 
applied for the first year of the contract period, academic year 1999/2000. 

B. "2000-2001 Cost": This represents the proposed unit cost of each item to be 
applied for the second year of the contract period, academic year 2000/2001 . 

C. "Multiplier for Ensuing Contract Years": This represents a formula which will be 
used to calculate ensuing price increases for each item for the remainder of the contract period . . . 
[remainder omitted] 

(2) Explanation of items: 

A. Fixed Costs 

i. Per Calendar Month: This item represents all costs borne by the 

Contractor that remain fixed over the course of a calendar month. 



14:2 NORTH CAROLINA REGISTER July 15, 1999 118 



CONTESTED CASE DECISIONS 



ii. Per Operating Day: This item represents all costs borne by the 

Contractor that remain fixed over the course of a single day that Woltline Service operates one or 
more hour of billable service. 

B. Per Mile Costs: [This category was removed by Addendum #3] 

C. Per Hour Costs: This item represents costs to be assessed on a 
per-bus-hour basis. 

5 1 . The three categories of cost, namely, per calendar month, per operating day, and per hour, respectively, are 
three different and distinct components of the total cost to operate the Woltline Transit Service. 

52. All vendors submitted a "Cost Proposal Worksheet" in the same form as found in Addendum #.^ to the RFP. 

53. The Cost Proposal Worksheet did not request or require that contractors state their total contract price over 
the three-year term of the proposed contract. 

54. TCT"s "Cost Proposal Worksheet" included costs in all three categories:: per calendar month, per operating 
day, and per hour. 

55. NCSU calculated for each contractor a total contract price over the three-year term of the proposed contract. 

56. With respect to TCT's cost proposal, NCSU calculated two different total contract prices, one being 
$5,473,215.15 and the other being $5,559,072.87. 

57. The $5,473,215.15 total contract price for TCT was calculated by NCSU using the per operating day figure 
and the per hour figure from TCT's Cost Proposal Worksheet only. 

58. The $5,559,072.87 total contract price for TCT was calculated by NCSU using the per calendar month 
figure and the per hour figure from TCT's Cost Proposal Worksheet only. 

59. Of these two different calculations, NCSU chose to adopt the value of $5,559,072.87 as TCT's total 
contract price over the three-year contract period. 

60. NCSU did not calculate a total contract price for TCT using all three components of cost (per calendar 
month, per operating day, and per hour) quoted on TCT's Cost Proposal Worksheet. 

61. If NCSU had calculated a total contract price for TCT using all three components of cost (per calendar 
month, per operating day, and per hour) quoted on TCT's Cost Proposal Worksheet, TCT's total contract price would have 
been calculated at $8.61.3,247.11. 

62. The failure of NCSU to add together all three components of cost as quoted by TCT could have resulted in 
a total yearly price that did not include all of TCT's costs for operating Woltline service. 

63. Da\ id Jones received from NCSU copies of the cost proposal worksheets and the cost calculations for all 
seven contractors, along with the recommendation of award by NCSU. 

64. David Jones reviewed the NCSU calculations of TCT's total contract price and he independently 
determined that the calculation of the contract price from TCT in the amount of $5,473,215.50 was an accurate calculation of 
TCT's total contract price. 

65. David Jones reviewed the cost proposals to see if he could understand what NCSU did and how they 
performed their analysis, what the analysis was based on, and whether he agreed with the math in their analysis. 



119 NORTH CAROLINA REGISTER Juh 15, 1999 14:02 



CONTESTED CASE DECISIONS 






66. David Jones did not instruct NCSU employees reviewing TCT's cost proposal to do one analysis on both 

nonthly fixed costs and daily fixed costs, even though he understood that monthly fixed costs and per operating day fixed 
osts were different cost components. 



67. David Jones acknowledged that a proper technique to be followed in analyzing the cost proposals submitted 
ly the vendors is to add the costs together to arrive at a total cost to compare the vendors" proposals. 

68. David Jones testified that, if fixed monthly costs, fixed daily costs and per hour costs are different costs, 
idding the three categories of costs together would be the proper method to arrive at a total cost of service. 

69. During the pendency of this matter and by Order entered February 25, 1999, the undersigned 
Administrative Law Judge ordered that this action should not go forward without Petitioner being permitted to file a formal 
)rotest pursuant to I NCAC 5B. 1 5 1 9(d), of the action of DOA in authorizing the award of the contract upon w hich this action 
s based. This was entered in part in response to arguments of counsel for DOA at a hearing held February 2.1. 1999, before 
he undersigned at which a Motion to Dismiss by DOA was one of the matters considered. 

70. By letter dated March ?>. 1999, Laidlaw, through its counsel, submitted a written protest to John A. Leaston. 
itate Purchasing Officer of DOA regarding RFP No. ROOlO.l. 

71. On March 17, 1999, Mr. Leaston conducted a protest meeting with Petitioner and its counsel to discuss the 
etter of protest. Thereafter, by letter of March .'^0. 1999. Mr. Leaston issued his decision. In that letter, he stated, in pertinent 
3art, that "after reviewing the procurement process, the authority granted North Carolina Slate University to award a contract 
rCT Transit Services, Inc. w ill not be rescinded." 

72. The technical proposal of Laidlaw was in compliance with the requirements of the RFP, including, but not 
limited to, the requirements of identifying a road supervisor, identifying a maintenance facility, and providing evidence of the 
required insurance coverages. 



13. The cost proposal of Laidlaw was in compliance with the terms and instructions of the RFP, and consisted 
'f a single cost proposal for consideration by NCSU, and thereafter by DOA. 



74. While the official record in this action contains evidence relating to the review by NCSU of five proposals 
other than those for Laidlaw and TCT, the undersigned Administrative Law Judge finds that it is not necessary for purposes 
of this Recommended Decision to make any affirmative Findings or Conclusions about that aspect of the review process. 

Based upon the foregoing Findings o\' Fact, the undersigned Senior Administrative Law Judge makes the following 

CONCLUSIONS OF LAW 

L All parties are properly before the Office of Administrative Hearings, and the Office of Administrative 

Hearings has jurisdiction over the parties and the subject matter. 

2. Laidlaw is an "aggrieved person" under Chapter 1 50B of the General Statutes and is entitled to commence a 
contested case under the provisions of Article .1 of Chapter 1 50B. 

3. Laidlaw was legally entitled to a contract proposal and review process that was conducted in accordance 
with law. rule and fair and proper procedure. 

4. The DOA violations of N.C. Gen. Slat. S l50B-2.1(a) substantially prejudiced Laidlaw's rights. 

5. Pursuant to Administrative Rule I NCAC 5B.0.Wl(.3)(b), DOA was vested with the authority to approve or 
take other action as deemed necessary by the SPO (for example, cancellation, negotiation, etc.) with respect to NCSU's 
recommendation to award the Wolfiine Transit Service contract lo TCT. 

W 6. When the DOA determined that TCT"s failure to provide evidence of a road supervisor as expressly 

required by the terms of the RFP was still in substantial compliance with the RFP, the Department of Administration: 



14:2 NORTH CAROLINA REGISTER July 15, 1999 , 120 



CONTESTED CASE DECISIONS 



A. Acted erroneously, in violation of N.C. Gen. Stat. § l50B-2.^(a)(2), and 

B. Failed to use proper procedure, in violation of N.C. Gen. Stat. § 150B-23(a)(3). 

7. When the DOA determined that TCT"s failure to provide evidence of an existing, actual maintenance 
facility as expressly required by the terms of the RFP was still in substantial compliance with the RFP, the DOA: 

A. Acted erroneously, in violation of N.C. Gen. Stat. § 150B-23(a)(2), and 

B. Failed to use proper procedure, in violation of N.C. Gen. Stat. § 150B-23(a)(3). 

8. When the DOA determined that TCTs failure to provide evidence of required insurance coverage as 
expressly required by the terms of the RFP was still in substantial compliance with the RFP, the DOA: 

A. Acted erroneously, in violation of N.C. Gen. Stat. § l50B-23(a)(2), and 

B. Failed to use proper procedure, in violation of N.C. Gen. Stat. § 150B-23(a)(3). 

9. In authorizing NCSU to award the Wolfline Transit Service contract to TCT Transit Services, Inc., the 
DOA: 

A. Acted erroneously, in violation of N.C. Gen. Stat. § 150B-23(a)(2), and 

B. Failed to use proper procedure, in violation of N.C. Gen. Stat. § 150B-23(a)(3). 

10. In his independent review on behalf of DOA. David Jones should have determined that TCT's technical 
proposal was not in compliance with the RFP at least with respect to the omission of the identity of the road supervisor, the 
lack of identification of a maintenance facility and the absence of complete insurance coverages and therefore TCT's cost 
proposal should not have been opened and considered. 

11. DOA's decision, through David Jones' review, not to reject TCT's technical and cost proposals substantially 
prejudiced Laidlaw's rights, was erroneous in violation of G.S.§ 150B-23(a)(2), and was the result of a failure to use proper 
procedure violating G.S. § l50B-23(a)(3). 

RECOMMENDED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law . the undersigned Administrative Law Judge 
issues the following Recommended Decision to the Secretary of the North Carolina Department of Administration: 

1. The DOA should rescind its erroneous authorization to NCSU to award the Wolfline Transit Service 
contract to TCT and advise NCSU to cancel this contract. 

2. The DOA should advise NCSU that if it still seeks a new provider for the Wolflme Transit Service, then it 
should begin as soon as practical to prepare for issuance a new RFP to secure a provider for the service. 

3. The DOA should advise NCSU that Laidlaw has stipulated to the Office of Administrative Hearings in this 
contested case that if it is retained as the provider of the Wolfline Transit Service during the preparation, issuance and review 
of a new RFP. that it will provide the Wolfline Transit Service at the rate of compensation that exists under its current 
contract. 

4. The DOA should advise NCSU that Laidlaw should be kept in place as the provider of the Wolfline Transit 
Service beginning August 16. 1999, afler the expiration of its current contract, under an extension of its current contract, the 
reimbursement terms for which shall remain constant for at least twelve months for the existing service, and that Laidlaw 
provide such transit services under the contract extension until a provider l\)r the ser\'ice is selected pursuant to a new Request 
For Proposal. 

ORDER 



< 



« 



121 NORTH CAROLINA REGISTER July 15, 1999 14:02 



CONTESTED CASE DECISIONS 



It is hereby ordered that the agency serve a copy of the final decisi()n on the Office of Administrative Hearings. Post 
)frice Drawer 27447, Raleigh, North Carolina 2761 1-7447, in accordance with North Carolina General Statute § 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
xceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
ecision. N.C.G.S. § 150B-36(a). 

The agency is required by N.C.G.S. § 150B-.'^6(b) to serve a copy of the final decision on all parties and to furnish a 
opy to the parlies' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Department of 
Administration. 

This the ir'day of June, 1999. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



14:2 NORTH CAROLINA REGISTER July 15, 1999 122 



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